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THE CATHOLIC UNIVERSITY OF AMERICA 
Canon Law Studies 
Number 77 


THE 



IN ITS 

COMMISSION, PENALIZATION, ABSOLUTION 

A DISSERTATION 

Submitted to the Faculty oj Canon Law of the Catholic University 
of America in partial fulfillment of the requirements for 
the Degree of 

DOCTOR OF CANON LA 

BY THE 

• - .: ; v_ r> 

REVEREND ERIC F. MACKENZIE, A.M, S.T.L., J.C.lT 
of the Archdiocese of Boston 



The Catholic University op America 
Washington, D. C. 
MCMXXXII 


Wrnjc 












.’M6680 


BY 

\ol 

Cob 

V-77 


ililjil <©&stnt: 


PATRICK J. WATERS, Pir.D. 


Censor Deputalus 


3tajr(matur: 

WILLIAM CARDINAL O'CONNELL 
Archbishop of Boston. 

Boston, June 3, 15)32 


Copyright, 1932 

The Catholic University of America 
WASHINGTON PRESS. INC. 
DOSXONi MASS. 


ii 


24iyfrAiVID 


To 

HIS EMINENCE 

WILLIAM CARDINAL O’CONNELL 
Archbishop of Boston 
in 

Reverence and Gratitude 





TABLE OF CONTENTS 










BIBLIOGRAPHY 


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Batiffol, Pierre, L'Eglise Naissanie et Le Catholicisme, 7 edition, Paris, 1919. 

_____——, La Paix, Constantiniennc et Le Catholicisme, 2 edition, 

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Billot, Ludovicus, Tractatus de Ecclesia Christi, editio tertia, Prati, 1909. 

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Bouix, D., Tractatus de Curia Romana, Roma, 1859. 

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gf Bibliography ix 

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g] Derecho Sacramental y Penal Especial, segunda edicion, 

|| Barcelona, 1920. 

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|| Barcelona, 1920. 

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% Codicem, 2 vols., Bruzellis, 1922. 

-§ Genicot-Salsmans, Inslitutiones Theologiae Moralis, editio decima, 2 vols., 
|| Bruxellis, 1922. 

4 Gottwald, William, Ecclesiastical Censure at the End of the Fifteenth Century, 

% Baltimore, 1927. 

If Guerin, M., Manuel de VHistoire des Conciles, 2 edition, 2 vols., Paris, 1856. 

|| Guiraud, Jean, Questions d'Histoire et d'Archeologie Cliretienne, Paris, 1906. 

| Gury, Joannes, Casus Conscientiae, editio quarta, 2 vols., Paris, 1868. 

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|| 1899. 

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| Barcinonae, 1910. 

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|Kenrick, Francisus, Theologia Moralis, 2 vols., Mechlinae-Baltimori, 1861. 
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# editio altera, 4 vols., Romae, 1910. 




x Bibliography 

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Brisgoviae, 1890, 

__ Theologia Moralis, editio sexta, Friburgi Brisgoviae, 1890. 

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Mazzella, Camili.us, De Virtutibus Infusis, Romae, 1879. 

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i905. 

Michiels, G., Normae Generates Juris Canonici, Lublin, 1928. 

Mothon, Joseph, Institutions Canoniques, 3 vols., Paris, 1922. 

Motry, Hubert, The Concept of Mortal Sin in Early Christianity, Washington, 
1923. 

Murphy, George, Delinquencies and Penalties in the Administration of the 
Sacraments, Washington, 1923. 

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Noldin-Schonegger, De Censuris, editio septima C. J. C. adaptata, Oeniponte, 
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i920. 

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---.- De Processibus, Romae, 1926. 


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CHAPTER ONE 


.gj HISTORICAL SURVEY OF HERESY LEGISLATION 

The English word heresy Is derived from the Greek noun atpsatc. This 
S;|| Greek term, which originally meant a taking or a capturing (as of a city, 1 came 
’ to mean also a choice and the thing chosen. At the time of the writing of the 
. New Testament, it meant a preference in matters doctrinal, political or religious. 
Hence this is the Greek word in the New Testament which is translated by the 
M English word sect. 

i The Greek term alpeaeg occurs nine times in the New Testament. In the 
rsl earlier writings, there is no clear implication of sin or error, and little connota- 
j tion of reprobation. The word is used objectively, to signify simply the fact 
ji that a certain group is recognized as distinct from others. Thus there is mention 
of the sect of the Pharisees, and of that of the Saducees. 2 Again, the Jews 
prosecuting Paul before Festus describe him as a leader of the sect of the Naza- 
4 mnes; but an unpleasant implication of the term is suggested by the fact that 
Paul in his reply deprecates the term.* In the Epistle to the Corinthians, Paul 
| speaks of schisms and heresies,< and in that to the Galatians, he enumerates an 
-i ascending scale of discords: “emulations, wraths, quarrels, dissentions, sects .”5 
43 In tbe last tilrcc instances just mentioned, the pejorative significance of the 
||j term is somewhat noticeable; but in the later apostolic letters, the word takes 
:f| on the meaning which its English derivative has today: a deliberate and sinful 
gf holding and teaching of false religious doctrines and practices, contrary to 
I tTUe teachitl £s of Jesus Christ. Thus Saint Peter warns the faithful against 
I “iy'ng teachers who shall bring in sects of perdition and deny the Lord Who 
5§ bou £ ht them; bringing upon themselves a prompt destruction.”« So too Saint 
| Paul sends instructions to Titus: “A man that is a heretic, after the first and 
\ second admonition, avoid: knowing that he that is such a one, is subverted, and 
gj sinnelh, being condemned by his own judgment.”’ 

If Ttle fathers took up the terms “heresy” and “heretic” and used them 
| for persons and doctrines that perverted the pure faith taught by Christ. 8 From 

,rt " 

1 Herodotus, Hist., IV, 1; Thucydides, Hist., I, 28. 

:Ji ' Acts, XV, 5; XXVI, 5: V, 17. 

3 "Acts, XXIV, 5, t4. 

4| 4 1 Cor., XI, 18-19. 

I 1 Gal-, V, 20. 

| " II Pet., II, 1. 

| 7 Tit., Ill, 10-11. 

4 Cf. Ignatius, Ad Eph., VI, 2: Ad Trail., VI, 1; Anlc-Nicenc Fathers, I, 51; 7G. 

II 1 




raj 

j 


2 The Delict of Heresy 

the first years of the Church, instances of heresy were multiplied; and heresy 
as an organized religious body is indicated in the letters of Saint John.’ The 
Church then and in after centuries, used every effort to preserve pure and in¬ 
tact the deposit of faith; and hence began a gradual development of exact for¬ 
mulations in dogma and administration which give us the present day histone 
dogmatic and legal connotations of the term “heresy”; but it is to noted 
that the essential meaning has not changed from that which the word had in 
the letter of Saint Peter. 

The fact that heresies would appear in His Church was clearly foretold by 
Christ and heretics and their false teachings were strongly reprobated by Him. 
It is important to notice this fact, since it is this divine example which originated 
the severe attitude afterwards adopted by the Church in the treatment of this 

delict. 

Manv false prophets shall rise and seduce many. . . Then if any 

man shall say to you: Lo, here is Christ or there; do not believe 
him For there shall rise false Christs and false prophets, and shall 
show great signs and wonders, so as to deceive (if possible) even the 
elect. ^Behold I have told it to you before hand. If therefore they shall 
say to you: Behold He is in the desert, go ye not out; behold He is 
in the closets, believe it not. 10 

According to Christ’s own teachings, the mark of heresy would be the rejec¬ 
tion of some part of His teachings,!! accompanied by a rejection of the au¬ 
thority of the Church; and the proper action by the Church would be excom¬ 
munication: “And if he will not hear the Church, let him be to thee as^ the 
heathen and the publican.”'! The final destiny of those who refused to accept 
the teachings of Christ and His Church was revealed m the final instructions 
given to the Apostles on the eve of the ascension, when Christ commissioned 
them to preach the Gospel to the whole world: “He that beheveth not shall be 

condemned.” 1 ’ . , . , , , 

These brief citations only partly represent the insistence which our Lord 

laid upon the absolute value and necessity of the truths He taught, and upon 
the authoritative role which the Apostles and their successors were to play m 
bringing His revelations to all men. Christ's mind upon this subject is found 
in the Gospels as a whole, and not merely in isolated texts. Heaven is no o e 
given to all indiscriminately, but only to those who sustain God s judgment a 
to the purity of their lives and their acceptance of the truths and regimen oi 




»I John, I, 1-3; II, 18; IV, 2-6; II John, 6. 
•“Matt., XXIV, 11; 23-26. 

" Luke, XI, 23. 

•> Matt., XVIII, 17. 

•■ Mark, XVI, 16. 


Vi 

jl 

■fs 


The Delict of Heresy 3 

Christ’s Church. It is this doctrine which is indicated in the familiar parables 
of the guest at the wedding feast, of the separation of the goats from the sheep, 
of the postponement until the harvest of the separation of the cockle from 
the wheat, and of the exclusion of the foolish virgins from the wedding feast. 

Christ’s own teachings were therefore the source of the views regarding heresy 
which are expressed in the apostolic writings and in the literature of the early 
Church. The Jews and heathens who had never heard of Christ were pitied for 
their ignorance, sternly but fairly judged for their sins; but at the same 
time the Church prayed and hoped that they would receive the Gospel, be 
converted and saved. 14 With all this went a policy, established from the earliest 
years, of clearly distinguishing between the Christian community and the 
general mass of non-believers. The Christians, as temples of the living God 
and sons and daughters of the Lord, 15 must be marked off as a holy people, 
thus calling attention to their status and affording an occasion for the illu¬ 
mination and conversion of unbelievers. Hence they must not engage in law¬ 
suits before pagan courts, 16 nor use meats offered to idols, 17 lest the scandal given 
thereby should obscure their essential superiority in faith and in divine grace. 

Quite different from this anxious attitude in regard to pagan and Jewish 
non-believers was the Church's attitude toward apostates and heretics. These 
had received the Gospel, had been baptized, and had shared the life and graces 
of Christianity. Misled by ignorance, pride or other vices, 18 they became false 
prophets and lying teachers, 1 ’ antichrists and seducers. 2 ’ Of such Saint Peter 
wrote: "It had been better for them not to have known the way of justice, than, 
after they had known it, to turn back from that holy commandment which 
was delivered to them.” 21 All the letters of Paul, of John, of Peter and of Jude, 
repeat in strongest terms warnings against these false prophets and erroneous 
teachers. Paul’s words to the Galatians 

There are some that trouble you and would pervert the spirit of 
Christ. But though we or an angel from heaven preach a gospel be¬ 
sides that which we have preached to you, let him be anathema. As 
we have said before, so now I say again: if anyone preach to you a 
gospel besides that which you have received, let him be anathema.- 


11 Ct. Paul's discussion of the status of Jews and pagans, and his argument that even pagans 
sin by disbelief,—Romans, I, 20-22; his desire that all he saved,—I Tit .. 11,4. 

11 II Cor., VI, 14-18. 

“ I Cor., VI, 1-6. 

17 1 Cor., VIII, 9-13. 

" 1 Tim., VI, 3-5; II Tim., HI, 1-5. 

'* II Pet., Ill, 3. 

30 1 John, II, 18; II John 7; Rom., XVI, 18. 

31 II Pet., II, 21;cf. Heb., VI, 4-6; X, 26-27; Jude, 13. 

53 Gal., XVIII, 20. 







4 


The Delict oj Heresy 


were so familiar that their phrasing passed into the dogmatic formulations of 
the Church councils from Nicaea to the Vatican: si tptis dixerit .... anathema sit. 

Nor did the Church confine herself to mere warnings. Paul writes of Hymeneus 
and Alexander who have “made shipwreck concerning the faith” and “whom I 
have delivered up to Satan, that they may learn not to blaspheme.’’ 23 Thus, 
from the first, the Church noted those who transgressed in matters of faith, 
and cut them off from the body of the faithful. Paul’s orders to Titus have 
alreadvbcen quoted, requiring that there be a first and second warning, and then 
avoidance of the heretic. 2) He also wrote to Timothy decreeing that there must 
be two witnesses before certain punishments be inflicted, 25 and this text has been 
thought to indicate a more or less formal process of trial even in these earliest 
days of ecclesiastical organization. Correlative to these instructions in regard 
to excommunicate offenders arc the commandments issued by John in regard 
to heretics: “If any man come to you and bring not this doctrine, receive him 
not into the house, nor say to him: God speed you. For he that saith to him: God 
speed you, communicateth with his wicked works." 25 In ail this the purpose of 
the Apostles seems to have been chiefly the protection of the Christian com¬ 
munity, and secondarily the correction of the erring brothers. The purely puni¬ 
tive element is not emphasized. 27 

The writings of the Fathers show a preoccupation with the making of con¬ 
verts and the repelling of false teachings, rather than any attempt to formulate 
legal and punitive codes. 23 Thus Saint Ignatius of Antioch writes to the Ephe¬ 
sians of the necessity of avoiding Docetism, 22 and to the Philadelphians in¬ 
sisting that true faith depends upon the authoritative teaching of the Church 
through the bishops, and not merely upon what is written in the “archives” of 
sacred writings. 32 Justin notes that heretics are always distinguished from the 
true Church, and called by the name of the heresiarch who first propagated the 
particular sect; and in this the heretics show themselves to lack the true faith 
of the prophets, of Christ and of the Apostles. 31 Ireneus denies the right of 
heretics to offer oblations; a basic distinction from the true Church, in which 
the Sacrifice of the Mass can be and is offered. 32 Tertullian pictures heresy 

23 Tit., I, 1S-20. 

21 Tit., Ill, 10-11. 

24 1 Tim., V, 19-20. 

26 II John, 10-11. 

22 Hyland, Excommunication, p. 17. 

28 Molry, Mortal Sitl in Early Christianity, pp. 17-19. 

28 Ait Eph., VI, 2; Ad Trull., X--XI ; Ad Smyrn., IV; Antc-Niccnc Fathers, I, 51-52; 69-71: 
87-SS. 

88 Ad Phil., VIII, 2; cf. nr, VII; Ante-Niccne Fathers, I, S0-S4. 

31 Dialogue, XXXV; Antc-Nicenc Fathers, I, 212. 

32 Adv. Ilacr., IV, IS, 4; Antc-Niccnc Fathers, I, 4S5. 



:,1 

)■ 


5 


The Delict oj Heresy 

metaphorically as the sterile and fruitless olive and fig trees, whereas the Church 
is like the cultivated and productive trees; hence in heresy there is a likeness 
to true Christianity, but not a real kinship. 33 Moreover, "Hacretici nullum 
habent consortium noslrae disciplinae quos exlraneos utique testaiur ipsa ademptio 
conmmnicationis . ’ ’ Si The right to judge and condemn heresy is for Tertullian 
an important and distinctive prerogative of Church authorities. 35 

The foregoing texts illustrate the fact that even in these early centuries ex- 
communication was the established spiritual penalty for apostasy or heresy, 
accompanied logically by the deposition of clerics from the offices they had 
proved unworthy to fill. When the era of persecutions came, and the problem 
of apostasy rose'to large proportions, these same penalties were invoked and 
applied, but with more definite regulations caused by the special difficulties 
which had to be solved. The well-known controversy of Saint Cyprian of 
Carthage with the Roman authorities turned not merely on the question of re¬ 
baptising heretics, but also on the extent of the punishment to be inflicted on 
those who had failed to profess the faith in face of civil persecution. The Mon- 
tanists, at this time and later, held that apostates could not be absolved from 
their sin nor restored to membership in the Church, no matter how sincere their 
repentance. Church authorities of orthodox faith held the contrary view, 
but were concerned to regulate the manner of reconciliation. Typical of such 
measures were the decrees of Saint Cyprian and the bishops of Africa, in the 
Council of Carthage, 251, which were later confirmed by Pope Saint Cornelius 
and sixty bishops in Rome, It was determined to exclude from all ecclesiastical 
functions those bishops and priests who had sacrificed to the pagan gods, or 
who had procured for themselves certificates of sacrifice; to accord commun¬ 
ion to laic hbellatici if they had done penance immediately after their sin; as to 
the laics who had sacrificed, their cases would be decided individually, and the 
degree of culpability thus discovered would determine the duration of the 
penance to be imposed and the time to which reconciliation would be post¬ 
poned. 36 This course of action obviously implies a penal system of excom¬ 
munication, trial, punishment, and authoritative absolution. 

Similarly, after the persecution of Diocletian, the Council of Ancyra decreed 
the same spiritual penalties against apostates, together with special legislation 
for those who could offer excuses that somewhat extenuated their delict. 

As to those who succumbed under threats, who sacrificed to idols 
through fear of the confiscation of their property, and who have 
not yet done penance: if they will present themselves, it seems good 

33 Do Pracscripl, XXXVI; Migne, P. L., II, 50. 
z< Dc Bapt., XV; P. L„ I, 1216. 

36 Batifol, L'Eglisc Naissantc, p. 337. 

” Mansi, 1,863; cf. Alkird, Hisloirc dcs Persecutions pendant la Premiere Moitic du Troisicme 
Steele, pp. 346^347; Diet, dc Thiol. Caih., tl Aposlasic," I, 1606. 




6 


The Delict of Heresy 

to us to wait until the great day [Easter] to receive them among the 
auditors; then they will accomplish their penance during three years; 
then, two years after, they will be admitted to communion. And so, 
after six years complete, they will be restored to their first perfection. 

... In danger of death from sickness or any other cause, even before 
the six years are elapsed, they will not be refused communion for 
viaticum.-' 17 

The Ecumenical Council of Nicaea was likewise concerned with this problem. 
The eighth canon decreed that Novatianists not merely could be reconciled 
to the Church, but likewise could be ordained to the clergy. 38 Apostates who 
were ordained in ignorance of their excommunication, or in contempt of the 
censure, were ordered deposed. 311 The most detailed legislation is that of the 
eleventh canon, which in general permitted reconciliation of those who apos¬ 
tatized, but ordered that they be deprived of the exercise of their offices in the 
Church, and (in the case of laics) established an irregularity for Orders. When 
the apostasy was a purely material sin, these penalties did not apply. 10 

The penalties inflicted by the Councils may seem exceedingly severe to 
modern readers; but as a matter of fact, the orthodox Church, under the guid¬ 
ance of the Popes, was fighting and condemning the excessive severity of the 
Montanists and Novatianists. who would not absolve apostates from sin or 
censure even in the moment of death, and who became heretics themselves when 
they added that the Church did not have the power so to absolve. Thus Pope 
Innocent I (405) wrote that at no time was Penance ever denied the dying, 
although the Holy Eucharist was denied during times of severe persecution, 
lest too great leniency might tempt the weak to apostatize; but after the res¬ 
toration of peace, not merely the Sacrament of Penance, but likewise that of 
I-Ioly Eucharist should be given, lest the Catholics should seem to share in the 
rigorism of the Novatianists. Hence both Sacraments are to be given to those 
who arc repentant and dying. 11 This law was reaffirmed by Pope Cetestine I 
(422-432) who condemned a still existing contrary practice in strong terms, and 
added what has since been quoted as a principle of administration: “Qtiovis 
tempore non est deneganda pocnitcnlia postulanti 

The texts cited above indicate the close association of absolution from heresy 


»> Canon G, Mansi, II, 513; cf. IT of ale, Hisloire dec Candles, I, 1, 208. The Council of Elvira 
(314) decreed more strictly in ils first canon, "let them not receive communion even at the 
last moment of their lives", Mansi, II, 57; Ilefclc, o.c., I, 1, 212. It is agreed that these 
texts do not refer to the administration of the Holy Eucharist ("Communion" in the modern 
sense of the word), but to participation in the communion or membership of the Church; 
cf. King, Administration of the Sacraments to Dying Non-Catholics, p. 95-9/. 

38 Denzingcr, n. 5G; quoted by G rati an, c. «S, C. I. q. 7. 

39 Canon 9; quoted by Gratian, c. 4, D. LXXX1. 

4n Quoted by Gratian, c. 32, D. L. 

41 Denzingcr, n. 95. 

Denzingcr, u. 111. 


!! 


:3 


I 







The Delict of Heresy 


7 


with public penance. The required public acts of penance passed into punish¬ 
ments which were incurred by the delict of heresy. However a distinction be¬ 
came recognized, between mortal excommunication and medicinal excom¬ 
munication. The first was inflicted on those who were guilty of serious offenses 
against faith and morals, and who thereafter refused to repent. This excom¬ 
munication involved entire separation from the Church; forbade participation 
in the Eucharist, in the prayers of the faithful, and in the hearing of the Scrip¬ 
tures. 13 The term anathema used in Paul’s text to the Galatians, was used 
for this censure, particularly in matters of heresy. 11 Etymologically, it simply 
means separation or cutting off; in practice, it means a major or mortal ex- 
communication. 15 

Medicinal excommunications were inflicted on those guilty of less serious 
offenses, or on those who had offended seriously but had repented and con¬ 
fessed. The penalties involved in this punishment were graduated and pro¬ 
portioned to the crime which was thereby expiated. The variations and modi¬ 
fications of this censure, and the different penances associated with its ob- 
serance, developed the penal law of the Church. 10 

To all these spiritual ecclesiastical punishments were added various secular 
penalties, once the Empire was reconciled to the Church and Christianity be¬ 
came the religion of the Emperors. Constantine considered himself a bishop in 
matters of the Church's external life. 17 He took a prominent part in calling 
councils, and in providing for the attendance of bishops from all parts of the 
Empire. At the conclusion of the Council of Nicaea, he pronounced a sentence 
of exile against the Arians who would not submit. 18 The following year he issued 
a law allowing favors to the Church, but carefully refusing them to heretics and 
schismatics. 19 He and the Christian emperors who followed him issued many 
decrees for the repression of apostasy and heresy, in as much as these involved 
disturbance of the public order. From all this came a secular penalization of 
sins against the faith: forfeiture of goods, annulment of wills, exile, and even 
death. Thus we find, as early as the fourth and fifth centuries, the beginning 
of the secular punishments which later were to be employed by the Middle Ages. 

Vacandard, in his well-known history of the Inquisition, gives documented 
evidence that such secular punishments, and especially the infliction of capital 
sentences, were abhorrent to the Fathers of the Church. Tertullian, Origen, 


13 Hyland, Excommunication, p. 20. 

11 Cf. Council of Gangre, (350),—Mansi, li, 1095; also the last article of the symbol of Nicaea, 
—Den zinger, n. 54. 

16 Cf. Canon 2257, 82. 

15 Hyland, Excommunication, p. 20. 

41 Eusebius, Vila Constantini, IV, 24. 

18 Eatifol, La Paix Conslantiniemie, pp. 321, 32U. 

13 Batifol, o. c., p. 34S. 







8 The Delict of Heresy 

Cyprian and others wrote in condemnation of the idea of renewing the Old 
Testament punishment of apostasy. Lactantius has an eloquent passage in 
pretest against the use of physical force in matters of conscience: 

It is true that it [religion] must be protected: but by dying for it, 
not by killing others; by long suffering, but not by violence; by faith, 
not by crime. If you attempt to defend religion by bloodshed and tor¬ 
ture, what you do is not defense, but desecration and insult/'" 

So too Hilary of Poitiers: 

I ask you bishops to tell me, whose favor did the Apostles seek 
in preaching the Gospel, and on whose power did they rely to preach 
Jesus Christ? Today, alas, while the power of the state enforces 
divine faith, men say that Christ is powerless. The Church threatens 
exile and imprisonment. She, in whom men formerly believed while 
in exile and imprisonment, now wishes to make men believe her by 
force. 111 

But while these writers were insisting upon the doctrine which was later 
summarized in the phrase Ecclesia abhorret a sanguine, 1 52 civil officials were faced 
by disturbances on a vast scale, instigated by Donatists and Manicheans. The 
putting down of these disturbances was a practical matter of vast importance 
and difficulty. In view of these practical considerations, Saint Augustine, start¬ 
ing from the advocacy of complete tolerance to heretics and entire reliance 
on spiritual penalties, came finally to approve restricted persecution ( temperata 
severitas), and to a defense of the state's right to inflict even capital punishment 
when the heretics seriously disturbed the public order. This theoretical ap¬ 
proval of the severest secular punishments was accompanied by insistence that 
the right be exercised with mercy and forebearance. 58 This came to be the 
accepted attitude of the Church: that in the Christian state, heresy is not 
merely a religious delict, but likewise a civil crime; and in the later aspect 
it may be punished by the state, even though the determination of the fact 
of heresy be ecclesiastical. 51 

After the developments we have indicated, there was in existence at the end 
of the sixth century a whole body of legislation visiting heresy with spiritual 
penalties,—excommunication, infamy, suspension, deposition, obligation to 

i0 Divin. Inslitul. V, 20,—Migne, P. L., VI, 616. 

61 Contra Auxent., 4, — F.L., X, 611. 

62 Attributed to Pope Nicholas I by Vacandard, Etudes de Critique et d’TIistoirc Religieuse, 
p. 233. 

63 Augustine, Ep . C. ad Donatum, c. 2; Ep . CXXXIX ad Marcellinum; Ep. CF;—* 
P. L. XXXV, 366, 555, 396. Cf. Vacandard, L* Inquisition, pp. 17-26; Cath. EncycL 
“Inquisition," VIII, 27. 

61 Vacandard, o.c., pp. 33-36; cf. St. Thomae, Sutnma, Ila-JIae, q. XI, art, 3. 


’if The Delict of Heresy 9 

h'ri 

|j undergo public penance,—and also severe secular punishments,—loss of right 
to bequeath property, confiscation of property, and even death. With the wan- 
| mg of active heresy, this law was less commonly applied, although it retained 
its juridical vigor. 55 There was little new development; so that when Gratian 
Jj made his compilation toward the middle of the twelfth century, he recorded 
[ only old canons, in the matter of heresy. 56 

1 The next era in which the Church was faced with vigorous heresy began in 
is the middle of the eleventh century, when the old Manichean doctrines re- 

.j appeared in Europe. The adherents of these doctrines called themselves various- 

| ly Albigensians, Cathari, Patari, etc., 57 They were not merely numerous, but 

| also well organized upon a secret basis which made their detection very difficult. 

| Like modern communists (whom they somewhat resembled), they disrupted 

:| the Christian community by their attacks upon authority, marriage, oaths, 

: and the whole fabric of social life. 58 From the middle of the eleventh century 

j onwards, synods and councils, both ecclesiastical and secular, were occupied 

j with the problem of discovering these delinquents and suppressing their secret 

| organization. During this same period the death penalty was often inflicted 

j on those who were discovered and proved guilty; this punishment, however, 

J was inflicted by mobs or by secular officials against the protest of churchmen, 

1 and beyond the enactments of the existing law. 50 It is quite clear that these 

: ! heretics were found guilty and punished not merely for spiritual faults, but also 
! | for lives and teachings that outraged the secular social conscience of the day. 

As has been noted, Gratian merely assembled old canons, of early councils, 
against heretics; but immediately after his time, there was a sudden and vast 
; development of special legislation to cope with heresy. This was the natural 
result of a crisis which was both social and religious, and widespread enough 
to embroil all Europe Previously, both the law and its application were quite 
4 local. Now, with a more universal social consciousness that Europe was one 

■J Christian community, and with the revived interest in Roman and canon law 

that was strikingly manifest at this time, there was an attempt to organize legal 
doctrine and practice upon a universal basis. The Decretals of the Corpus Juris 

“ Legislation by Church Councils in Spain continued somewhat inter, and was marked 
by severity, particularly against the Jews; ef. Ziegler, Church and State in Visignlhic Spain, 
pp. 50, 185, sq. 

86 \Vemz, Jus Decretalium, VI, n. 2S.8. In the Decree of Gratian C. XXIII; C. XXIV; the 
introduction to Friedberg’s edition of the Corpus Juris indicates the sources which Gratian 
used. 

" Dotmis, I.es ITcrctiques ilu Comte <le Toulouse an XIII Siiclc , studies the specific doc¬ 
trines of the various groups; but admittedly they were much alike in belief and practice. 

18 Guiraud, Questions d’Histoire, pp. 49-92. 

j 55 Death penalties were inflicted at Orleans, in 1022; at Goslar, 1052; at Cambrai, in the 
| presence of Emperor Henry III, 1070; at Toulouse, 1114; at Liege, 1144. Note that these 
i dates extend back over a century before the establishment of the Inquisition. Cf. Vacandard, 

1 LTnyuisition, pp. 40-45. 





10 


The Delict of Heresy 

contain the legislation and penal administration applicable by the Church as 
a whole, which was the result of this development. 

The suppression of the heretics was a task undertaken by both the Popes and 
the Emperors. Pope Alexander III, in the Lateran Council of 1179, pronounced 
against them the spiritual penalty of anathema, implying infamy, denial of 
Christian burial, deprivation of the Sacraments, etc,; and in addition called 
upon all princes to protect their Christian subjects from the outrages of here¬ 
tics who were disturbing the public welfare.«» The same pronouncement in¬ 
flicted the penalty of excommunication upon all those who defended and re¬ 
ceived the heretics. The secular penalty indicated for heresy was imprison¬ 
ment and confiscation of property; but various rulers, such as Pedro II of Aragon 
(1197) added the further penalty of death at the stake.' 1 

The next Pope, Lucius III, found that even these measures were not suffi¬ 
cient. He concerted action with the Emperor, Frederick Barbarossa, at Verona 
in 1184. The ecclesiastical penalties against heretics were to be excommunica¬ 
tion, deprivation of every benefice and office, infamy, and inability to perform 
legitimate actions. The administration of this law was entrusted to the local 
bishops, who were bound to go once or more each year to every part of their 
dioceses, and there investigate all suspected persons. Those found guilty were 
to be handed over to the secular officials to receive the secular punishment 
deserved by their crime,—the animadversio debita . 62 At the same time that 
this legislation issued from the Pope, the Emperor decreed that all heretics 
were under the ban of the Empire, a punishment which involved banishment, 
confiscation of property, destruction of the house occupied by the criminal, 
public infamy, and inability to hold office; it did not involve the death penalty. 63 

Innocent III next reigned as Pope, and exerted his powers vigorously to over¬ 
come the heresy whose evil influence still was rampant. He likewise secured 
co-operation from Emperor Frederick II. Innocent’s legislation was largely 
devoted to systematising the previous law and developing administrative 
processes . 61 It was approved and applied to the whole Church by the Fourth 
Council of the Lateran, in 1215. 65 In 1220, the Emperor issued a constitution, 
applying to the whole Empire, in which he ordered the strict punishment of 
heretics. 66 In this constitution he compared heresy with the crime of laesa 
majeslas, and noted that rebellious insult directed against the majesty of God 
was more heinous than crime directed against human majesty. The import 

6t C. S, X, de haerelicis, V. 7. 

61 Vacandard, L'Inquisition, pp. 03-66. 

62 C. 9, X, de haerelicis, V. 7; Vncandard, o.c ., p. OS. 

w Vncandard, o.c., p. 67. 

64 Vncandard, o.c., p. 68. 

65 Cap. Ill,—Mansi, XXII, 9SG. 

6e Vncandard, o.c., p. 127. 




The Dflict oj Hersey 


11 


<8 

!| of this text was quickly noted. The secular penalty for the civil crime of laesa 
majeslas was death at the stake; and while this penalty had often been applied 
| to heretics, there had been no imperial law justifying this extreme punishment 
until the Emperor made this comparison. Death at the stake was made legal 
;| in Lombardy in 1224, and was incorporated in the Imperial Code for Sicily 
| in 1231. 61 This, of course, was civil legislation and a secular penalty for the 
B crime against the state and the social order; but when the Church authorities 
jij discovered any contumacious and relapsed heretic and handed him over to the 
| civil authorities, the penalty of death at the stake automatically followed. 

I The next step,—a matter of administration,--came under Pope Gregory IX. 
| He found that the bishops, despite the obligation imposed by Pope Lucius III, 
;1 were not uniformly active and successful in handling cases of heresy, and in 
| detecting those who professed and practiced heresy in secret. To aid the local 
I investigation (legally called an "inquisition"), he began, about 1231. to send 
| representatives to act in his name as assistants to the local authorities. This 
] was the beginning of the Papal Inquisition (i.c., investigation by agents and 
| delegates of the pope). 

The regulations of the activities of the papal inquisitors, their powers, the 
I mutual relationships of their activities with those of local bishops, the pro- 
: ! ] cedure to be followed, the quality of evidence required for conviction of the 
i accused, the employment of the usual secular process of torture: all these 
I complex matters were regulated through the succeeding years in a mass of 
law which may still be read under the title De llaercticis in the Decretals of the 
\ Corpus Juris.™ This legislation has been frequently studied and commented 
I upon, and is too extensive and complicated to be summarized here. 63 
j The official approval of the collections of Decretals in the Corpus Juris made 
I this heresy legislation the law of the Church; but after the disappearance of the 
1 Neo-Manieheans, the law was rarely applied. 70 There was no great outburst of 
f heresy until the Protestant revolution of the sixteenth century; and in this 
| connection the attempt to revive and use the medieval Inquisition was found 
s ineffective in practice. Pope Paul III therefore decided to reform the medieval 
« tribunal, and to this end appointed six cardinals to act as a supreme tribunal 
1 in all matters of faith,—the Sacra Congregatio Romanac el Universalis Inquisi- 
I tionis sen Saudi OJficii.' 11 Later Pope Sixtus V undertool: an entire reorganiza- 

if 

4 

•I- 

j 67 Vacandard, o.c., pp. 129, 134. 

58 Chiefly in V, 2, de haerelicis, in Sexto. 

i For commentaries, see Vacandard, o.c., pp. 141 sq; Douais, L* Inquisition; Vermeersch, 

| Tolerance , pp. 122-155; articles in Calk. Encycl., Did. de Theol. Cath., etc. 

I In 1478, Pope Sixtus IV acceded to the request of Ferdinand and Isabella, and revived 
I the Inquisition in Spain. Its activities there have been much criticized, but the alleged evils 
| seem largely due to the domination by civil authorities; cf. Cardinal Ximines, pp. 

| 276-400; Cambridge Modern History , I, 356. 

| 71 July 21, 1542; cf. Bouix, Tract, de Curia Romana, p. 155. 



12 


The Delict of Heresy 


tion of the papal curia, and distributed the administration of the business of the 
Church among fifteen permanent congregations of cardinals, the first and chief 
of which was the Sacred Congregation of the Holy Inquisition.” This same 
Congregation retained its pre-eminence in the new regulation of the Roman 
Congregations by Pope Pius X in 1900. 73 Its present powers and duties are 
defined in canon 247 of the Code. In general, it is charged with safeguarding 
Catholic faith and morals throughout the world, and has competency over all 
cases of heresy, either in first instance or upon appeal, of any persons in any places. 
Under this supreme authority, Ordinaries have competence over cases of heresy 
within their own territory. 

The decisions of the Congregation of the Holy Office, rendered in regard to all 
types of problems involving the faith, indicate the official application of the 
law of the Church, and hence make clear in what circumstances and to what 
extent the Church acts in regard to matters that involve or seem to involve 
some doubt or denial of faith. These decisions form a very considerable part 
of the background, in the light of which students must read and interpret the 
canons of the Code. 

The foregoing paragraphs have dealt with the Church’s organization for com¬ 
batting heresy. Recurring now to the penalties inflicted upon heretics: the close 
of the Middle Ages brought to an end the close union of Church and State; 
and hence the application of secular punishments to delinquents against the 
faith fell into desuetude. The strict provisions of older laws were found im¬ 
possible of application in the modern world. Thus, the old law made every 
heretic vitandus; that is, the faithful were bound to avoid intercourse with 
him not merely in religious acts, but in secular concerns as well. Failure to avoid 
such heretics was punished by minor excommunication; 7 * i.e., by a deprivation 
of the Sacraments. The consequence of this strict law was great uncertainty and 
anxiety on the part of the faithful, who could not know whether or no they 
had been exposed to the incurring of this excommunication; and even when 
they knew, could not always avoid it. Hence, as a favor to the faithful, Pope 
Martin V, in 1418, introduced a new canonical distinction, declaring some 
excommunicates viiandi, and the rest tolerali.™ The former were excommuni¬ 
cates who continued under the previous discipline, and hence must be strictly 
avoided by the faithful. The tolerati were excommunicated, but the faithful 
were permitted to have dealings with them in social, business, and political 
matters; in general, they were to be avoided only in matters strictly religious. 

72 Jan. 22, 15S7: cf. Bouix, l. c. 

73 Constitution Sapienti Cojisilio , June 29, 1908,— Fontes Codicis J . C. f n. 682. 

Cf. canon G. 

75 Hyland, Excommunication , pp. 31-34; 3G-47. 

76 Constitution Ad Evitanda ,— Fontes Codicis n. 45. 








4 


•J The Delict of Heresy 13 

1 

I The purpose of this legislation was to restrict the number of cases in which 
|j the faithful would incur the minor excommunication; and hence was intended 
:| solely as a safeguard for the faithful, and in no wise as a favor to the excom- 
>! municates. One result of this legislation was the fact that minor excommunica¬ 
te Lion, once a familiar part of penal legislation, became more and more rare, 
Jj and ceased to exist 77 after the publication of the Constitution Apostolicae Sedis. 
:i The Council of Trent was devoted chiefly to the definition of dogmatic 
| truths which had been impugned by Protestant heresiarchs, and to the Catholic 
| counter-reformation. It dealt but little with the canonical determination of 
| the fact of heresy, or with the proper punishment thereof. It may be noted 
jj however that the Council gave to Bishops (but not to their vicars) the power 
J to absolve from heresy, in the internal forum. 78 This was a mitigation of the 
I previous law, which had reserved absolution of heresy to the Pope. 77 However 
| after the Council, the customary Bulla Coenae continued to speak of the reserva- 
| tion of heresy to the Pope, and included the following text: 

j Nullus per alium quarn per Romanum Pontificem, nisi in mortis 

§ articulo, absolvi possit praetextu quarmnvis facultatum et indulgen- 
| torum, quibuscumque personis, etiam episcopali vel majori dignitate 
j praeditis. . . . per Nos et dictam Sedem ac cujusvis concilii decreta 
concessorum vel concedendorum. 


| Since the Council of Trent was the only Council which permitted the Bishops 
I to absolve from heresy, this Bulla Coenae appeared to limit the Tridentine 
3 faculties as far as the censures contained in the Bulla (including that of ex- 
| communication against heretics) were concerned. 60 

j All controversy on this point was closed by the Constitution Apostolicae 
J Sedis.*' The introductory paragraph declared that only those penalties latac 
3 sententiae would be valid in the future which were contained in the following 
■ij sections of the constitution; and that these penalties would be valid in the 
J manner in which they were inserted in the Constitution. The first excom- 
j munication in the list of those reserved speciali modo to the Roman Pontif 
j was inflicted upon 

1 Omnes a Christiana fide apostatas, et omnes ac singulos haereticos 

:j quocumque nomine ccnseantur, et cujuscumque sectae existant, eisque 

1 credcntes, eorumque receptores, fautores, ac generaliter quoslibet 

j illorum defensores. 

1 - 

1 77 This was officially stated by S. C. S. Off,, Dec. 5, 18S3 Collect., n. 1C0S. 

i Ia Sess, XXIV, de reformation, cap. (i, —Concilium Tridentinum, editio Goenresiana, pars 
j VI, p. 1011. 

:j 77 Cs. 3, 5, de poenitentiis, V, 9, in Extravag. Com. 

i S1 Pennacchi, Commentaries in Consitutionem Apostolicae Sedis, pp. <59-67, Cf. S. C. S. Off., 
j deer. Sept. 24, 10015, ad 3,— Fontes Codicis J. C ., n. 734. 

| Bl Fontes Codicis J. C., n. <552; cf, Carr, Constitution “Apostolicae Sedis" Explained, p. 35. 

-.1 

:J 

.1 

| 

1 



14 The Delict of Heresy 

This legislation, taken from the Bulla Coenae, is the direct antecedent to 
canon 2314 of the Code. It visits heretics with excommunication laiae sentmtiae, 
specially reserved to the Holy See. The Code of Canon Law, which went into 
effect on May 10, 1918, continued this legislation, with minor changes which 
will be noted under appropriate headings. 


CHAPTER TWO 


HERESY AS A SIN 

The Catholic Church claims to be, and is, the one and only true Church, estab¬ 
lished by Christ to perpetuate through all ages and among all races the truths 
which God had revealed. It is her duty to preserve and teach the deposit of 
faith; and corresponding to this duty is the obligation on the part of men to 
accept and believe the Word of God which the Church brings to them, and to 
profess their faith externally on suitable and necessary occasions. 1 2 

It is in the light of this doctrine that the Code defines a heretic, in the following 
terms : J 

Si quis, nomen retinens christianum, pertinaciter aliquam ex veri- 
tatibus fide divina et catholica credendis denegat aut de ea dubitat, 
haereticus [cst.] 

The following pages will record the mass of legislation concerning such persons; 
but before turning to this legislation, it is necessary to consider the import of 
each of the parts of this definition, and to determine just who are included 
among those proscribed for the crime of heretical depravity. 

In canon law, the concept of crime necessarily supposes the existence of sin. 3 
Hence the exposition of heresy must note separately the sin and the crime,— 
the internal and the external acts which, together, make the individual a sub¬ 
ject of penal legislation. Therefore this dissertation will treat first of the sin, 
and secondly of the crime of heresy. 

******** 

According to the perfection or imperfection of their religious faith, all men 
may be divided among five groups: 

1. The first is composed of individuals, technically called "infidels," who 
have never received the Sacrament of Baptism; the non-reception of this Sacra¬ 
ment distinguishes them from the members of the other four groups. Among 
the infidels are to be included those who have no knowledge of the true God,— 
heathens or pagans; those who accept some part of God’s revelations concerning 
himself and His relations with men,—the Jews and Mohammedans; likewise 
many who profess to be Christians, but who either have not received Baptism 

1 Canons 1322-1325, under the title lt De Magislerio Ecclesiaslico 

2 Canon 1325, §2. 

1 Canon 2195. Cf. Wernz, Jus Dccretalium, VI, n.13. 

15 



16 


The Delict of Heresy 


at all, or else have merely been subjected to some ceremony which is defective 
in form or intention or both; 4 5 and finally, those unbaptized persons who reject 
all religions,—atheists, deists, etc. 

These individuals, being unbaptized, have never received that spiritual re¬ 
birth which is the beginning of Christian life,® and which causes the recipient 
to be a person in the Church of Christ, subject to her laws and her penalties. 11 
It must be clearly understood that there is no reference to infidels in the fol¬ 
lowing exposition of the penalties inflicted upon heretics. 7 

2. The next four groups are alike in that each member of these groups has 
validly received the Sacrement of Baptism, and thereby has been constituted 
a person in the Church of Christ. The distinction of these groups, each from 
the others, is found in the different relations which these baptized persons have 
with the Church in which their Baptism gave them objective membership. 

The first of these groups comprises those who were baptized and who live 
in the unity of doctrines, Sacraments, and practices of the Church, and who have 
not rejected their faith by apostasy, schism or heresy. Despite other sins of 
which they may be guilty, they remain fidcles, the faithful, in the sense that 
they possess and hold to the Catholic faith. With this group, heresy legislation 
has a very important connection, since the Church's laws imposing punishments 
and disabilities upon heretics have for their purpose the protection of the faith¬ 
ful, must be administered by the officials who rule over the faithful, and, in 
various instances, are addressed to the faithful, requiring them to avoid the 
heretics as sources of perversion and occasions of scandals 

3. The next three groups include those who, despite their initiation into 
the Church by Baptism, later secede from communion with her. The members 
of the first of these three groups are called schismatics: namely those who pre¬ 
serve their faith in revealed truths, but who refuse obedience to the Supreme 
Pontiff, or reject communion with the Catholic faithful. 

Schismatics, in the strictest sense of the word, do not sin against faith, but 
only against obedience and charity. 0 Pure schism of this type is not very com¬ 
mon. Practically and historically, schism tends to become mixed schism, i.e., 

4 Cf. Sabetti-Barrett, Compendium Thcot. Moral., n. 662, in which is given a list of the 
familiar non-Catholic sects in the United States, and a general estimate of the invalid or 
doubtful Baptism administered by their ministers. 

‘John, III, 1-21. 

6 Canon 87. 

7 Hence a catechumen who studies the 1 Catholic faith, and then, before he has been bap¬ 
tized, decides sinfully not to believe, is not a heretic, and is not subject to the penalties for 
heresy,—Wernz, Jus Decrelalium, VI, n. 284; Bouquillon, Dc Virlulibus Thcologicis, p. 176. 

s Cf, the Scriptural warnings against heretics, page 3 above, which serve as the basis and 
reason for legislation requiring avoidance of heretics, as, e.g., canons 1258, 1324. 

5 N old in, Dc i’racccplis, n, 32*. 


17 


| 

| The Delict o} Heresy 

.I to adopt and teach some heretical doctrine, « This is clearly the case with various 
j Oriental sects, witli the so-called Old Catholics, etc., who are commonly classed 
jj as schismatical, despite the heretical tenets which they are known to hold." 4 
f This dissertation, being confined to the study of heresy, will not treat of 
si schismatics; although it may be remarked that schismatics are generally men- 
§ tioned by the Code in parallel with heretics, as subject to the penal legislation 
;| which is here expounded. 

• j The last two groups are called apostates and heretics. The apostates are 

| those who, despite their Baptism, reject Christianity entirely, and profess 
,| to be Jews, Mohammedans, pagans or entire unbelievers. 12 The essential 
| characteristic of this group is the totality of their rejection of the Church and 
j the religious faith into which they were baptized, as shown by the fact that they 
I no longer retain the name of Christians. Juridically, they are grouped with 
j heretics, who differ from them in that the heretic rejects not all, but only one 
| or some dogmas. Both groups are subject to the same penalties. ^ The reason 
i, for this is the fact, which will be demonstrated below, that both apostates and 
j heretics commit the same specific act of rebellion against divine and ecclesi- 
j astical authority. 

:4 

5. Finally, there is the group comprised of heretics, defined above. We 
j have thus far noted that they are baptized, and so are distinguished from in- 
] fidels; that they sin against faith, and so are distinguished from schismatics; 

| that they reject some, but not all Christian revelation and authority, and thus 
i are distinguished from apostates. Before discussing the three further elements of 
| the definition given in canon 1325, §2, it is to be noted that heretics arc of two 
; types. 

First there are the heretics who, by birth or conversion, were at one time 
j members of the Church, but who become heretics by a personal act of disbelief 
; or doubt, thereby abandoning relations with the Church to which they had pre¬ 
viously belonged. There are many such cases. Some lose their Catholic faith 
through educational processes, in which they imbibe anti-Catholic or anti* 
i religious ideas from teachers, books, etc. Others sacrifice their membership in 

j 10 Calk. Encycl.j "Schism", XIII, 529. 

1 11 S.C.S.Off., Oct. 14, 1670,— Collect, n. 211, speaks of schismatici hacrclici ; of. S.C.S.OfL, 

J Aug. 22, 1000,— Collect, n. 2098, which implies differences in faith between schismatics and 
i Catholics. The broad use of the term is common and justified by approved custom, 
j Distinction must be made hot ween abandonment of religious belief and abandonment of 

] religious practices. A Catholic may become indifferent, and no longer practice his religion, 
i a * K > yet never have rejected and eliminated faith in revelation and in the Church. In this case 
1 there is no apostasy in the technical sense of the term. Cf. Wernz, Jus Decrelalium, VI, n.2!33; 

1 Cappello, De Can stir is, n. 62. 

\ 11 Wernz, o. c., n. 206: “Nullum in jure canonico statu tain esse pocnam hacretieorum quae 

J P on lata in apostatos, et vicissim ab apostatis nullum incurri pocnam a qua hacretici sint 
immuncs.” Cf. c. 13, dc hacrclicis, V, 2, in Sexto. 

1 

I 








18 The Delict of Heresy 

the Church for reasons of worldly advantage, or for fear of temporal loss and 
difficulties. While some may be in good faith, it may be generally presumed 
that these heretics were fully conscious of the sin they committed when they 
definitely left the Church or abandoned belief in her teachings. In any case, they 
remain fully subject to the Church’s laws, and hence to the penalties she as¬ 
sesses against heretics. 

The second and larger portion of the group of heretics is composed of those 
who were validly baptized, but who were thereafter brought up outside the 
Church, in some non-Caiholic form of Christianity. It may be conceded that 
many of these heretics are in entire good faith, since they are determined to¬ 
wards non-membership in the Catholic Church by family ties, by the tenor of 
their earliest education, by their associations in mature life, and by the force 
of a long-standing tradition supporting their particular sectarian affiliation. 
When they arc in good faith, their sin of heresy is purely material, and does not 
involve personal guilt. 11 In the external order, they are held responsible for 
their non-membership in the Church by presumption of law. 15 Canonists are 
agreed that the Church continues to hold them to the observance of her laws, 
in so far as these are intended to regulate public order. 16 As to ecclesiatical laws 
intended to promote personal sanctification, there is an unsettled controversy 
among canonists. Some hold that these heretics are bound by the laws, but are 
excused from observing them by invincible ignorance; others hold that the 
Church does not wish to bind them, since actually they do not know or obey 
her will in these matters. 17 In any case, the legislation, about to be treated, is 
concerned with public order in the external forum; and as such, it is intended 
to apply to heretics of this class as well as to Catholics who become heretics. 

It remains to examine three important elements of the definition of heretics, 
as given by the Code in canon 1325, §2. 

A. “ Verilatibus fide divina el catholica crcdendis" 

Heresy is an offense against religious faith. More precisely it is the rejection 
of one or more truths which must be believed with divine and Catholic faith. 
These words of canon 1325, §2, derive from the Vatican Council. 16 They indi¬ 
cate the two doctrinal authorities whose testimony precedes an act of Catholic, 
faith, vis., God revealing, and the Church authentically proposing. 

Acts of faith are frequently made in regard to matters which are in no wise 


The Delict of Heresy 19 

3 religious. In its most general sense, faith means simply the acceptance of a 
•| judgment as true, not because the believer can demonstrate its truth himself, 
’ but because he is satisfied with the knowledge and veracity of a witness who 
•1 assures him that the said judgment is in accord with reality. In this way men 
| know by faith countless things that are beyond their personal experience: far- 
| away places, and nations and individuals long since dead. Knowledge derived 
I from books, lectures, conversations and the general process of teaching is essen- 
| tially knowledge through faith. 

I Faith in matters of religion is not, as a process of learning, psychologically 
I different from faith in matters of everyday life. 15 The difference comes only 
| in regard to the character of the witness who is believed. Experience amply 
j proves that mere human witnesses can err and often do so, can lie and often 
j do so. Hence human testimony can only be believed with qualifications and 
j reservations. On the other hand, religious truths, to be believed with divine 
:j faith, are testified to by God Himself; and it is elementary theology that God 
| can neither deceive nor be deceived. If God is the witness to any proposition, 
j it follows that there cannot be any reasonable reservation or qualification to 
1 the assent which should be rendered to the proposition. 

:i Divine revelation must have taken place before an act of religious faith can 
be reasonably demanded. Granted this divine revelation did take place, the 
; heinousness of apostasy and heresy is found in the fact that misbelief or un¬ 
belief is a blasphemous imputation of error or deceit to God Himself. A fur- 
I ther blasphemy is at least implicit, in that the apostate or heretic thinks, or 
i seems to think, that he has some means of distinguishing truth from error, which 
| operates more certainly and more infallibly than does God’s own Infinite Tn- 
; telligence. 20 Hence sins against faith arc basically blasphemies against God 
5 Himself. As such they are considered, next to odium Dei, the most heinous that 
:: man can commit. 21 Nor is there any essential distinction between the guilt of 
j heresy and of apostasy, since the same blasphemy is implicit in both. Divine 
| revelation calls for absolute and universal faith in all that is revealed. Rejection of 
j any one truth involves the same blasphemous attitude toward God that is in- 
j volved when all the truths are rejected. 22 

| Public revelation by God ended with the death of the last Apostie, some 
s nineteen hundred years ago. 23 Since that time men have not been able to have 
j direct contact with the human beings through whom God has delivered Ilis 


14 Leitner, Handbuch, I, p.04. 

16 Canon 2200, § 2, 

16 Cf. Denzinger, n. SG4. 

17 Bouuacrt-Simenon, Manitalc Juris Canonici , n. 162. 

n Cone. Vatican., sess. Ill, c. Ill, de fide catholica,— Denzinger, n. 1792. 


\ 12 All mention of the necessary role played by divine grace in the preparation for and making 

of an act of faith is here omitted; for this consult texts by dogmatists. 

| 20 St. Thomas, Ila^IIac, q.V, art. 3. 

f. 21 Noldin, Dc Pracceptis, n. 31. 
j 22 Noldin, o. c.y n. 4. 

| 23 Calh. EncycL, "Revelation”, XIII, 4. 










20 The Delict of Heresy :jj 

messages of religious truth to the world. However, by the institution of Christ j 
Himself, these revelations are handed on from place to place, and from genera- .? 
tion to generation, by official intermediaries, to whom is given a special divine tj 
assistance to preserve the truths from any adulteration of error. To Peter and i 
the Apostles, and through them to the Catholic Church, Christ gave the com- } 
niand: “Going therefore teach ye all nations . . . teaching them to observe all j 
things whatsoever I have commanded you; and behold I am with you all days, i 
even to the consummation of the world.’’ 24 This text, supported by others cog- j 
nate in meaning, 25 gives the Church the duty of proposing divine revelation for 
men’s belief, and of preserving it from any admixture of error; and at the l 
same time if guarantees divine protection and guidance to ensure that the trans- 
mission of revelation through the ages shall not in any wise deform the original ;: 
truth. 26 

The Church therefore stands as witness to the fact of God's revelation, and as . 
guarantor of the exactness of the transmission of this revelation. The divine 
protection she enjoys in the performance of this duty is itself a revealed truth. 

An act of faith therefore is properly called divine and ecclesiastical: divine, in as f| 
much as faith accepts truths attested by God Himself; ecclesiastical, in as much "1 
as the Church guarantees the fact of revelation and the exact transmission of ii 
the truth so revealed. All this calls for faith, since God's Infinite Knowledge and iI 
Absolute Veracity support the whole. 27 ,1 

Heresy involves not merely a sin against faith, but a sin against the Church's j 
proposal of revelation. In fact the technical sin of heresy can only be com- 3 
mitted when both God and the Church arc rejected as sources of religious truth, j 
Hence the following two cases do not involve sins of heresy. j 

The first concerns private revelations. God has spoken privately to certain f 
individuals through the ages. Such individuals are required to believe Him, even j 


The Delict of Heresy 21 

A second case concerns teachings which the Church proposes, but which are 
not part of the deposit of faith. Thus there are matters which arc of purely 
human orgin; the propriety and efficiency of certain judicial procedures, regu¬ 
lations of ceremony surrounding the Mass and the Sacraments, etc. Catholics 
will regularly accept these because of their trust in the Church; but if anyone 
should doubt or deny the Catholic teaching in their regard, he would not be 
denying a divine revelation, nor be guilty of heresy. Again, the Church teaches 
what are called theological conclusions. These are deductions obtained by joining 
a revealed truth with a truth of human wisdom, and from these combined premises 
deriving the teaching in question; for example, the propriety of the term “trans¬ 
substantiation" to express the mysterious change produced in bread and wine 
by the words of consecration in the Mass; or the sanctity of Saint Bona venture; 
or negatively, the condemnation of certain philosophical and theological teach¬ 
ings as erroneous, though not heretical. In these matters the Church demands 
assent, not because what she teaches is divinely revealed, but rather because 
it is true. If assent is given, it is not fides div.ua ct catholica, since we are only 
assenting to the Church, and not to the revelation of God Himself. Hence, a 
person who withholds assent in these matters is not a heretic. 25 

This teaching is briefly summed up in canon 1323, §1, of the Code. Divine and 
Catholic faith is required only when a truth is officially proposed for belief either 
by an Oecumenical Council, or by the Pope speaking ex cathedra, or by the con¬ 
stant and universal authority of Catholic teachers throughout the world (ordi¬ 
nary magisteriitm), and when this truth is part of the deposit of faith which was 
divinely revealed and committed to the Church for public teaching. And, con¬ 
versely, heresy is only present when such a truth is pertinaciously doubted or 
denied, by a baptised adult. In all other cases, there is no heresy. 


though they lack intrinsic evidence supporting the proposition in question. If a 


however a favored individual were to receive such a private revelation and 
yet disbelieve it, he would sin against divine faith, but he would not be a here¬ 
tic, since the matter in no wise called for ecclesiastical faith. 28 On somewhat the 
same basis, certain points of revelation contained in the deposit of faith have 
not been defined as dogmas nor proposed by the Church through her ordinary 
inagisicrium. Errors in regard to such points would not be technical heresy. 20 


! B. '‘Donegal ant Dubitat." 

j 

j A heretic is one who pertinaciously denies or doubts a truth revealed by God 
j and authentically proposed by the Church. Denial and doubt are per sc intcl- 
| tactual acts. Tile determination of just what intellectual acts constitute the sin 
j of heresy, and of just what individuals arc guilty of the sin of heresy, nccos- 
I sarily involves a considerable psychological analysis. Thought is extremely 


11 Matt., XXVIII, 19-20 Cf. Denzingcr, n. 1703. 

3 Matt., XXVI, IS; John, XIV, 16-17; Luke, XXII, 31-32. 

20 Canon 1322. 

21 Noldin, Dc Praeceptis, n. 0, 3, b. 

28 Wcrnz, Jus Dccrctalium , VI, n. 2S-1; Cappello, Dc Ccnsuris, n. 03; Noldin, Dc Pracccplis, 
n. 32*. 

Piet, dc Thiol. Calk., " llcrisie", VI, 22L2: as for example, the Assumption of Mary, 
materiality of the fires of Purgatory; cf. Pighi, Ccnsurae, n. 52, 2; Bouquillon, Dc Yirtutibus 
Thcolagicis, p. 171. 


■- Cappello, Dc Ccnsuris, n. 63. This is the leaching of the Thomistie school. Contra, 
j Melchior Cano, Vega, etc., arc quoted as holding that theological conclusions are to be believed 
| ™th divine as well as theological faith; cf. Tanquerey, Synopsis Thcol. Dngm., II, n. ISO. 

Chelodi, Jus Pncnalc, n. hi, notes that a conclusion contained in a revealed premise as a part 
i 117 a whole, must be believed with divine as well us ecclesiastical faith: e.g., Christ died for 
; all men, therefore He died for me. 

; Note also that failure to accept theological conclusions, when it involves obstinate pro- 
• fusion of doctrines branded by the Church as erroneous, is not heresy, but is still a serious 
j offense, punished by canon 2317. 




v ... ... « t 


^e^S2seaffiasaj!g^ 


22 


The Delict oj Heresy 


complex, and takes many forms distinguishable only by careful analysis. The 
true import of the law can only be determined when this analysis is made; and 
the penalties decreed by law can only be applied when heretical acts are clearly 
distinguished from other intellectual acts which, however similar, do not in¬ 
volve the sin of heretical depravity. With this apology and explanation, the 
following subjective states and processes may be distinguished: 

1. The first state of any human mind is ignorance. With regard to religious 
truths in general, or any one truth in particular, man is first of all unaware of 
the doctrine and of its revelation. The truth expressed by combining (negatively 
or affirmatively) a subject with a predicate, cannot be present to the mind until 
both the subject and the predicate have been received in the mind as ideas, 
and until the further step is taken of correlating or associating these ideas 
in the form of a judgment. 51 

In dealing with sins of heresy, it may properly be supposed that the indi¬ 
vidual is not in a state of entire ignorance of all religion. Ex hypolhesi, he is 
baptized, and moreover accepts and believes some Christian doctrines on a 
basis of religious faith. Without this background of faith, he could not be 
classed as a heretic, but would be an entire apostate. Hence there is no need 
here of considering his psychological relations with the preambles of faith,— 
God’s Omniscience and Veracity, and the historic fact that God is the Author 
of revelation, and particularly that Jesus Christ revealing is God revealing. 
It may well be that the heretic has given these truths little careful and personal 
study. But as a professing Christian, he must be familiar with these matters, 
at least in a general way, and must assent, to all of them. 

2. Let attention now be limited to the individual’s relations with one par¬ 
ticular truth, and let it be supposed that he accepts and believes the rest. The 
number one is taken for the sake of simplicity,—it could be ten or two or any 
other number, provided that it is less than the total of Christian doctinc, and 
that the individual is still to be classed as a Christian. In regard to this one truth, 
the first stage of religious development is that of entire ignorance. The individual 
does not know this dogma. This is evident in the case of children, who learn 
their religion progressively, doctrine by doctrine; and in the case of neophytes, 
and of many of the simple faithful, who learn the truths closely involved in their 
daily life, but fail to learn other truths, or else only learn them after delays. Thus 
a person might be baptized, and know and believe the elementary religious 
truths, without yet knowing or believing that there is a general judgment, or 
tljat there is a Sacrament of Orders, or that indulgences are related to the pun¬ 
ishments of Purgatory. 







The Delict oj Heresy 


mmmsmtmtts : 


23 


J 


Moralists and canonists are agreed that this state of ignorance is entirely 
lacking in morality. 32 It. is negative, hence neither virtuous nor sinful. Beyond 
all argument, it does not involve a sin of heresy, since the individual does not 
have the doctrine before his mind, either to doubt or deny it. 

3. Something more of a problem is raised by the next case. Suppose again 
that the individual is ignorant that God has revealed, and the Church has 
proposed a specific truth to be believed. In the absence of this extrinsic teach¬ 
ing, the individual approaches the subject matter of the truth from a purely 
human standpoint, and formulates a judgment on the basis of the objective 
evidence provided by his human and secular experience. Thus, for example, 
let the dogma be that of the infallibility of the Church in the teaching of faith 
and morals. The individual does not know this to be a matter of faith. He has 
not even heard that the Catholic Church claims and has divine guidance and 
protection against error. In the course of natural thinking, he reflects that all 
men err in thought and act; that Catholic priests, and all the hierarchy are men; 
that therefore, Catholics in general err, and therefore, the Church too. This 
reflection is conducted purely on the plane of natural reasoning, without even 
a suspicion that there is any revealed truth involved. 

Objectively speaking, the individual has denied a truth which should be 
believed with divine and Catholic faith. But it is likewise clear that this is a 
purely material sin of heresy. 33 Since he is ignorant that God has revealed the 
opposite doctrine, he is not in any way in revolt against divine doctrinal au¬ 
thority, which is the formal object of faith. s< He is in purely human error. His 
judgment represents with sufficient accuracy and truth the finite evidence 
which he possesses; it is erroneous only in the fact that further and different 
evidence is lacking to him. 

The example just cited was deliberately chosen, since it represents a fairly 
frequent case among non-Catholics. 35 While they are baptized, and while they 
profess to be Christians, and actually believe many Christian truths, it fre¬ 
quently happens that the teaching they actually receive does not contain any 
mention of God’s providential care of His Church, as revealed in the promises 
of Christ, and as taught and proved by Catholic theology. When therefore 
they chime of this matter, they take their premises from purely secular wisdom, 


S1 "Cum credere dicat assensum, non potest esse nisi de compositione,”—St. Thomas, 
Quaesl. Dispulat., Dc Vcrilale, q. XIV, art. 12. 


Lehmh-uhl; Theol. Moral., I, n. 3; Vermeersch-Creusen, Epitome I, S8, 1. Many non- 
Cathohcs arc m this condition in regard to revealed truths taught by ti.e Catholic Church. 
Hence their heresy is purely material. Cury-Ballerini, Comp. Theol. Moral., I, n. 210. ci 1 
i'erreres, Iv.stihtciones Canonicas, II, n. 295. ’ 

Moral. Comp., I, n. 207, 2; Donovan, Comp. Theol. Moral., I, tract. V, n. 

'' 9°S C - Vatican -> sess. HI, c. Ill, defide catholica, —Denzinger, n. 1789; Tanquerey, Synopsis 
Theol. Dogni., II, n. 145. 1 J r 

,4 Cath. Encycl., "Heresy", VII, 250. 


j 










24 


The Delict of Heresy 


and draw from them a secular conclusion which contains no reference to revela¬ 
tion or the supernatural economy. Prescinding from their status in the external 
forum, it is clear that they commit herein no sin of heresy—or, more accurately, 
they commit only a material sin, but not a formal sin which involves personal 
guilt and punishment. 

4. The next degree of complexity is obtained by adding to the preceding case 
some suspicion that there is a religious teaching in the matter, over and above 
the secular experience and evidence which has been noted. Suppose therefore 
that the individual has simply heard a statement made by a Catholic speaker, 
or read a statement in a book or paper. To take another example, suppose 
that our individual hears or reads the Catholic doctrine that Jesus Christ is 
really and personally present in the Blessed Sacrament. Struck by this new 
idea, he pauses to reflect upon it. Pie finds immediately that the evidence of 
his secular experience quickly opposes this teaching. The Blessed Sacrament 
was bread, over which certain words were spoken; thereafter It continues to have 
the appearance of bread, in color, shape, size, taste, and all the other outward 
accidents. On the basis of natural experience, the argument is clear and forceful 
that even after the words of consecration, It continues to be bread. 

There are therefore present two opposed lines of thought: one, from natural 
and secular observation, indicates the conclusion that Jesus Christ is not pres¬ 
ent; the other, from testimony, indicates that He is present. When two such 
opposed judgments are present before the mind, and when neither the one nor 
the other is accepted, the individual is in a state of doubt. 36 

Two questions may be asked concerning the doubt just described,—it being 
understood that they relate to this first moment of hesitation, when both the 
opposed judgments are before the mind, and not to succeeding moments when 
some further process of thought has taken place. Is this doubt heresy? Is it 
sin at all? The answer must be negative on both points. It is not heresy, since 
there is present only a momentary and passing stage of thought, which has 
nothing about it that is pertinacious and obstinate; and these are necessary 
qualities of the sin of heresy. Moreover it is not sin at all, but rather a temp¬ 
tation. 37 It must be recognized that in presenting the two opposed tentative 
judgments, the intellect is simply acting in accordance with its nature. It is 
simply recognizing and assenting to the objective evidence before it. There 
is objective evidence that some Catholic speaker or writer claims Jesus Christ is 
really present. There is likewise objective evidence that the appearances of 
bread persevere in the Blessed Sacrament, and objective evidence that in 
natural and secular experience, the perseverance of accidents connotes the 
perseverance of the same substance. There can be no sin in the recognition of 


)6 Catli. Encycl., “Doubt", V, 141. 

17 Noldtn, De Praeceptis, n. 14, 2, d. 





iff 

| The Delict of Heresy 25 

S objective evidence. It is simple intellectual honesty. Moreover, the intellect 
| has no freedom in this regard. When evidence is present, the intellect simply 
| records it. Freedom is found only in the will. Now, sin always presupposes 
a free and deliberately chosen act, and is therefore derived from some act of 
I die will. The process described above is purely intellectual, and does not 
| involve the will in any way. Therefore again, it cannot be sinful. 

3 Obviously, the case thus envisaged is the familiar one of those who are scrupu- 
i lows about temptations against the faith. This stage of the intellectual process 
| is not sinful. Sin can only be present when some act is taken in consequence of 
J this intellectual problem, under the guidance of the will. 

| 5. From the problem presented in the last section, there are some four 

'! distinct developments possible. The first of these consists in sheer neglect, 
i While the intellect is conscious of the problem presented above, it will like- 
I wise be conscious of multitudinous other objects which likewise manifest them- 
| selves and make some claim for attention. Thus the individual is aware of ail 
I the objects of sense, internal and external. He lias other reflections which he 
| can pursue, and a whole range of non-intellectual activities. The intellect, as 
,i such, can be satisfied by objective evidence of any sort, deriving from any ob- 
i ject. 

The power of determining what objects shall receive attention, and from 

4 what objects attention shall be withdrawn, resides in the will. 38 It is the im- 
3 mediate manner in which freedom is exercised. Now in many cases, choice 

is made almost automatically, on the basis of the interest of the object. “In- 
■: terest" or "value" are relative terms, difficult of appraisal. It seems clear how- 
l ever that they are determined in part by the nature of the object, and in part 
1 by the previous ciioiccs of the individual, which, taken together, form his 
< present tastes and character, and constitute an apperceptive mass which con- 
■ ditions his present choice. If the individual, on this basis, finds no interest in 
the religious problem, and automatically turns his attention to other objects, 
there can be at most only responsibility in cause. 39 ITis previous acts of will 
.? general tenor of life have made it morally impossible for him to occupy him- 
\ self now with religious matters. 

-1 In other cases, the will will consciously determine the course to be pursued 
•1 in the present doubt. This means that the intellect is turned to a consideration 
| of motives for choosing one way or the other: to attend to the problem, or to dis- 
I regard it. The motives may be widely various. In favor of study of the prob- 
j ' em r the intellect may note the importance of the problem, the authority of 
J the writer or speaker who informed him of the Catholic doctrine, the interesting 
,jj connection of the problem with investigations and studies previously pursued. 


Ja MoN.ibb, Oxford Conferences on Faith, pp. J28 sq, 
39 Gury, Comp, Theol, Moral , I, p. S. 






20 The Delict of Heresy 

In favor of disregarding it, the intellect may note the work involved in study, 
the time that must be spent, the sacrifice of other interests and pursuits, and, 
perhaps, the possibilities that investigation of the problem may lead to a duty 
of changing religious beliefs, with consequent difficult readjustments of life, 
business, social and other relations. 

We suppose in this heading that the individual determines to abandon the 
problem, and give his attention to other and alien objects. This choice of the 
will involves morality, good or bad. If the individual, on reflection, finds nothing 
of importance favoring the Catholic claim, and is convinced that the claim is 
based on ignorance and superstition, which is exposed and disproved by his 
natural and secular experience, his decision to turn to other matters is only 
a material sin. If on the other hand, he is aware that there is some weight 
and authority supporting the Catholic statement which deserves investi¬ 
gation, but nevertheless, he determines to occupy his attention with other 
matters, he is guilty of some formal sin of neglect. The gravity of this sin is 
proportioned to his realization of the duty to investigated" and to the worth 
of the motives inclining him to distract himself. 

It is important to note that sins of neglect are not sins of heresy. 1 i To be a 
heretic, one must consciously reject and disregard the doctrinal authority of 
Cod and of the Church. In the case thus far proposed, our individual knows 
that some Catholic has claimed that Jesus Christ is really present, but he does 
not yet know that this claim is backed by God and the Church. It is not until 
this further fact is adverted to, that there can be any sin of heresy. 

G. The second reaction to the problem presented in section four above, is a 
decision to investigate and study it, and so settle the doubt. In other words, 
the individual is conscious that the presence of these two conflicting lines of 
evidence is a situation calling for further action. 12 Hence he seeks, immediately 
or at the first convenient opportunity, to look further into the evidence. In this 
number, it is supposed that he honestly comes to the conclusion that the prob¬ 
lem is insolvable. He therefore remains in a state of doubt, finding no way of 
reconciling the opposed evidence. This termination can be arrived at if his in¬ 
vestigations show the natural evidence in apparent contradiction, e.g., to the 
Real Presence, is clear and objective, and that the authoritative evidence of 
witnesses is weighty, but not apodictical. In this last connection, his study 
might indicate that there were serious doubts as to the fact of revelation, due 
to the opposed testimony of non-Catholic religious leaders, and the possibility 
of giving a non-Catholic meaning to biblical texts. It is quite clear that the in¬ 
dividual in this case could not honestly assent to the doctrine as true and cer- 

1,1 Did. de Thiol. Calk., "Foi", VI, IDS. 

11 Donovan, Comp. Theot. Moral., I., I, tract V, n, 39. 3. 

1! Tanquerey, Synopsis Theol. Dognt., I, n. 230; Molrlin, De Proeceplis, n. 14, d. 


S£SE££2 


Jj The Delict of Heresy 27 

I 

| tain, when it appears to him as onfy doubtfully true. This failure to believe 
| would again be a material sin; and if his efforts were in due proportion to his 
| abilities and opportunities, no sin of neglect could be charged against him, 
jj and hence no personal fault at all. 13 

'i It should be added, however, that this solution of the problem is only possible 
| in the case of those who are unaware of the fullness of the Church’s teaching 
| authority. A Catholic born and bred will know that whatever is taught by the 
i Church is infallibly true, and hence must make an act of faith as soon as he 
j finds with certainty that the Church does teach a given doctrine. 11 Non- 
I Catholics will commonly not know and accept this general principle. It is they 
; who will be included in the solution just given. 

■ 7- The third reaction to the problem of section 4 is a determination to study 

; the opposed tentative judgments, and the carrying out of this determination 
jj until it is clear that the dogma is revealed, and, thereafter, the making of an 
| act of faith. This activity is completely correct and meritorious. In this solu- 
| tion, the natural and secular evidence does not disappear, but is seen to be in- 
\ complete and partial. While the mysteries of faith remain mysteries, the act 
| of faith is always reasonable. The inadequacies of our sense experience and our 
| reasoning therefrom are indicated, and proper motives assigned for disregarding 
| their apparent opposition to the dogma. However, no matter how firm and con- 
| stant our faith, these natural difficulties may and do recur, and present them- 
I selves to the mind. The recognition of the objective evidence upon which they 
1 are based is not sinful, but is merely the natural function of the intellect. Faith 
simply requires that we turn each time from the consideration of this incom¬ 
plete truth, to the recognition of the infinite guarantee afforded by the Omni¬ 
science and Veracity of God. 15 

8. The heretic s reaction to the problem of section 4 has been reserved for the 
last of these considerations. This heretical act involves two elements; first, 
intellectual grasp of the fact that God and the Church testify to the truth of the 
teaching, and a deliberate and obstinate act of the will turning attention away 
from this testimony, and concentrating it upon considerations which support 
judgments opposed to the teaching. 15 

11 Gury-Ballerini, Comp. Thcol. Mora!., 1, n. 210, 1; St. Alplionsus, Thcol. Moral., 1. II 
tract. I, n, 9, l & 2. 

! J* NMm De Praeceplis, n. 29, e; St. Alphonsus, O.C., n. 9, 2; n. 19, G. For this reason the 
unirch prohibits to Catholics the possession and reading of books advocating heresy, etc.,— 
canon 1,399, § 2. 

■ deliberate fostering of doubts and difficulties is a sin in a Catholic who possesses an 

Sf 11 r‘e source of religious truth; non-Catholics, who possess no infallible guidance, can and 
“attend to the difficulties inherent in their sectarian beliefs; cf. Notdin De Praeceplis, n. 

216 ^ Alphonsus, Theol. Moral, 1, II, tract I, n. 19; Bouquillon, Dc Virtuiibus Theologicis, n. 




1 


28 The Delict oj Heresy 

As to the first element, the heretic must be aware that he is rejecting religious 
authority, not merely in the sense of authority of jurisdiction, but especially 
in the sense of authority of testimony. He must be aware that the doctrine is 
supported by the word of those who know, and who are speaking truly what 
they know. If a person is conscious that this doctrinal authority is complete 
and certain, it is practically impossible for him to prevent giving intellectual 
assent. Those who know that God has spoken, will scarcely be able to reject His 
teaching (implicitly accusing Him of ignorance or lying): if this is asserted in 
words, the intellect will still be rejecting the words in its internal judgment. 
It is psychologically easier to deny or doubt the authority of human witnesses 
to divine testimony, as individuals, or as parts of the Church. 17 Most heresy is 
based upon rejection of the human element in the divine dispensation of truth. 

The psychological process involves the will’s use of its power to distract the 
attention of the intellect. 75 Confronted with the evidence of revelation and 
Catholic promulgation, the intellect is directed to disregard this external evi¬ 
dence and confine its attention to the internal problem of reconciling the sub¬ 
ject with the predicate of the proposition. Religious truths ordinarily involve 
mysteries; in other words, God tells us something is true, but He does not ex¬ 
plain or make clear how it is true. 13 Hence, the intellect will constantly find in¬ 
trinsic difficulties,—i.e., intrinsic objective evidence in apparent contradiction 
to the declaration of the Church. The intellect can and must accept this in¬ 
trinsic evidence (as far as it goes) as true; in so doing, it is acting properly, and 
in accordance with its nature. The sin of heresy consists in the direction given 
the intellect by the will, which prevents the intellect from considering extrinsic 
objective evidence, and which confines the intellect to evidence contrary to the 
dogma. Thus, to recur to our example given above: the individual is conscious 
of the teaching authority of the Church and, at least in a general way, of the 
implied absolute authority of divine revelation; all this supports the Church’s 
affirmation of the Real Presence. However, the individual wills not to heed 
this. He repeatedly causes his intellect to recur to the fact that the senses 
manifest the appearances of bread; to the human experience that mere words 
do not cause substantial changes; that a real human body occupies vastly more 
volume than a consecrated host; that men are prone to superstition, and that 
religious priesthoods often consciously encourage superstition; that millions of 
people, including religious teachers, deny the teaching; and so following. There 


4 ‘ Lolunkubl, Comp, Theol. Moral., n. 135; Bouquillan, Dc Virlulibus Thcologicis, p. 175. 

18 McN'abb, Oxford Conferences, p. 12S, states; "Of late years, the subject of attention has 
been given its normal place in psychology. It has even been called the essential phenomenon 
of will .... St. Thomas has analysed its function, and has even looked upon it as the source 
of all subsequent evil in intellectual beings that have turned to evil .... Psychologists 
are discovering that error is a volitional, more that an intellectual, problem." Cf. Wernz 
Jus Dccrelalium, VI, n. 28-1. 

13 St. Thomas, Ila-IIae, q. 2, art. 4; Contra Gentiles, pars I, c. 5. 


The Delict oj Heresy 29 

I is objective evidence to substantiate all of these considerations, and the in¬ 
tellect can accept all of them as true. The result will be that front these premises 
■•I (with the opposite evidence of revelation carefully excluded) a heretical con- 
’ elusion will be drawn. And each time the intellect recurs to the matter of 
authoritative teaching, the will intervenes, and diverts attention back to these 
I and like considerations. In this sense heresy is pertinacious and obstinate. The 
I intellect has some knowledge of the authoritative teaching of the truth, and 
j this memory tends to recur and upset the erroneous tenet; but the heretic re- 

I peatedly represses this consideration, and thus prevents a full and honest sur- 
I vey of all the evidence relating to the matter. He causes the intellect to formu- 

I I late a judgment, and then insists that there be no review or reconsideration. 

J The example we have just considered was one of complete denial. As Canon 
■| 1325, §2, indicates, heresy may take the form of doubt. Before the Code, cer- 
| tain authorities taught that even sinful doubt would not constitute a sin of 
j heresy; 50 their reasoning being that heresy, as one of the most serious of sins 
j in either the internal or external forum, must be restricted to acts which were 
j perfectly consummated according to their species; while the state of doubt, 

1 or suspended judgment, is an imperfect and incompleted activity. The posi- 
i tive enactment of the Code makes this opinion untenable. 51 But even more 
j than this extrinsic argument, there is the intrinsic fact that the state of doubt 
1 can involve the same malice as is found in express denials of revealed truths, 
j It has been shown that the essential sin of heresy consists in deliberately avert- 
ing the intellect from the consideration of the doctrinal authority supporting a 
| doctrine, and at the same time causing the intellect to note and approve ob- 
|j jective evidence which is somewhat contrary to the doctrine. Now this evi- 
; ] dence may be completely against the doctrine, or it may be itself divided. Take 
j -~°r example, the immortality of the soul. Leaving out of account any revealed 
certainty, the ordinary examination of the matter will disclose demonstrative 
j arguments favoring immortality, along with less weighty but more popular and 
! appealing arguments denying immortality. The heretic would thus consciously 
exclude from his mind the religious backing of the doctrine, and confine himself 
) to the natural evidence in the matter, and find that it appeared on this basis 
| to be objectively doubtful. His statement that human immortality is doubtful is 
| opposed to the Church’s teaching that human immortality is certain. At the 
| s ame time ho has been consciously dishonest, and has consciously abused his 
j freedom of will, when he excluded the definite declaration of the Church, from his 
| mind. We have therefore an erroneous conclusion due to an abuse of the will's 
| control of intellectual attention. This clearly includes all the elements of a sin 

j 

5 10 Noted by Cappello, De Censuris, n. 04. 

’■'•J .“ The majority of pre-Code moralists taught this same doctrine, that positive doubt con¬ 

i'; stituted formal heresy; cf. Gory, Comp. Theol. Moral., I n. 210, q. 2; St. Alphonsus, II, De 
* Praecepto Fiilci, n. 19, 2. 1 ’ ’ 




30 


The Delict of Heresy 

of heresy. 52 Judgment that the subject matter of a revealed truth is objectively 
doubtful (positive doubt) is therefore rightly included by the Code as a form of 
real heresy. 

In brief summary of the examination so far made, it may be said that there 
is no formal sin of heresy when a truth of faith has not been sufficiently pro¬ 
posed; i.e., when the individual does not know that it has been revealed bv God 
and proposed by the Church. This remains true even when the ignorance was 
caused by some guilty choice of the individual, causing the ignorance to be 
classed as culpable, 52 —whether simply so, or crass and affected, or even affected. 
In this last case, of affected ignorance, care must be taken to be sure that the in¬ 
dividual is really ignorant; for, in affected ignorance, there is room to suspect 
that the individual is not ignorant at all, but knows the truth and its revelation 
and promulgation, and is simply intent upon repressing that knowledge; or 
else, that the individual has made up his mind not to believe, even if he does find 
that the doctrine was actually revealed and proposed. Either of these last two 
conditions is sufficient to make the individual guilty of heresy. 54 Once the 
doctrine has been sufficiently proposed to the individual, he is called upon 
to believe it, to assent to it as true and certain. Any act of his wherein he 
refuses to assent, whether he deems it untrue or uncertain, is the sin of heresy. 


C. Pertinaciter 

What we have already said makes plain that heresy consists not merely in 
error, but in error which is consciously and deliberately conceived by excluding 
the evidence which would otherwise lead to a true judgment. Heresy is an 
act of the intellect, but an act directed by the will and attributable morally 
to the will. This influence of the will is indicated in the definition of heresy 
by the word “pertinacious.” Pertinacity means that the individual holds ob¬ 
stinately to an erroneous judgment, despite the contrary urging of doctrinal au¬ 
thority toward truth. It indicates that the formal sin only exists when the 
individual assents to error dishonestly, and in bad faith. 55 In D’Annibale’s 
phrase, already quoted, he errs “sciens volens." 

The absence of any pertinacity excuses a person from the sin of heresy. Mere 
tentative judgments, erroneous though they may be, do not involve this de¬ 
liberate choice by the will, and the deliberate and obstinate holding of error 


" Gary, o. c., I, n. 210, q. 1. 


1 T , A1 P'h >l ) 5us > IW'bj n ' 19> 3; of. D'Anmbale's phrase ( Commenlarimn in Constilutionem 
Apostohcae beats, n. 30): "Ul igitur Christianas haerettcus clici potest, necesse est ut erret; at 
m nde erret; ut erret sciens volens.” 


The distraction between affected ignorance of this type, and other affected ignorance in 
winch the person is prepared to believe, but deliberately avoids having to do so, is made by 
Lugo, De Fide, Disp. 20, n. 197, sq.; and quoted by Gary, ibid., q, I, not. a. 

“ Wernz, Jus Decretalium, VI, n. 284. 


The Delict oj Heresy 


31 


known to be error. On this basis, there is no heresy in the cases presented by 
many scrupulous Catholics, who confess that they have entertained doubts con¬ 
cerning matters of faith. 56 Such doubts are simply the recognition of objective 
truths, whose harmonious correlation with the dogma is not understood. This 
causes a tentative judgment that the problem of correlation must be investi¬ 
gated. This however is not heresy; it is a correct and proper finding on the 
basis of what is thus far before the mind. Actually, such Catholics soon advert 
to the absolute demonstration afforded by the teaching authority of Christ 
and of the Church; and with this in mind, assent to the truth of the teach¬ 
ing, and thus explicitly make an act of faith. Even though there remains the 
persistent recollection of the inability to perceive the truth by intrinsic evi¬ 
dence, and even though the recollection of this inability persists through con¬ 
siderable periods of time, the individual does not thereby commit any sin of 
heresy, but is merely suffering from a temptation. His basin judgment is one 
of assent and faith; the incidental advertence to one or to many difficulties 
does not change his essential attitude. 57 

So too a person who methodically investigates a doctrine, and thereby be¬ 
comes aware of difficulties and objections whose cogency and force he judges 
to be real and based upon true and certain evidence, does not thereby commit 
the sin of heresy. 5 * He may sin against prudence if he rashly and without 
reason exposes himself to temptations against the faith; or sin by neglect if he 
does not take proper means to safeguard himself against temptations once 
he is conscious of them. But the same sins would be committed by rashness 
and carelessness in regard to any other virtue. These sins are not specific sins 
against faith, but rather against prudence, fortitude and caritas :m'.« If there 
is no rashness, and if the study of difficulties and objections is part of the ful¬ 
filment of duty (as in the case of a theologian or an apologist), the perception 
of the truth of the objective evidence and the awareness that this truth offers diffi¬ 
culties with regard to dogmas, are not sinful acts, and especially are not sins of 
heresy. Even a Saint, Thomas is aware that truths of the natural order offer 
apparent contradiction to truths of revelation, and can with difficulty be har¬ 
monized with the latter. The act of faith gets much of its merit in that it is 
made in spite of these difficulties. 55 Clearly there is no sin of heresy in an act 

55 Noldin, Dc pracceptis, n. 33, 3, b. 

I, n. / 2]o" yS ' The ° L MOml ' '■ H ’ tra0t n - 16 ’ 2i cf - Gury-Ballerini, Comp. That!. Moral., 

, 0 .icl hiS r, inVe ?i iga iiS n - is different from the methodic doubt of Georg Hermes condemned in 
835 by Pope Pius IX .n the Encyclical "Qui IHnrihns ”. Hermes applied theCanSn method 
.ind did not simply investigate truth, but first removed it from the mind by a nositive act and 
their sought to regain it by a process of purely human or philosophical reasoning The result 

of Denzln^r, nn IMS “ 9Cnt * tC ^ ^ 

*' Lehmkuhl, Thcol. Moral, I, n. 29S, 3 & 4. 
u Did. de Thiol. Catle, “Foi", VI, col. 393 sq. 






32 The Delict of Heresy 

which is simply the recognition of the truths that difficulties persist in con¬ 
nection with the mysteries of faith. 

Distinction must likewise be made concerning the guilt attaching to errors 
in faith, when these errors are due to inculpable ignorance, to culpable ignorance, 
and to formal heretical depravity. As has been stated, sheer ignorance is a 
negative and unmoral state. A person who holds some heretical tenet because 
of complete lack of opportunity to know the truth (inculpable ignorance), is in no 
wise guilty of sin in conscience. Ignorance which is due to neglect of oppor¬ 
tunities to learn the truth (culpable ignorance), is sinful in proportion to the 
gravity of that neglect. On this basis there is the familiar distinction between 
grave culpable ignorance simpliciter, crass and supine ignorance, and affected 
ignorance. All of these are seriously sinful; but as long as the sinner is actually 
ignorant that he is denying or doubting a revealed truth, the sin is technically 
not a sin of heresy. This neglect is directly opposed, not to the virtue of faith, 
but to the precept to learn religious truth and to order life in proper relation to 
God and the divinely established economy of salvation. 6 ' It must be added how¬ 
ever that the so-called affected ignorance is sometimes a mere affectation of 
ignorance; in other words, the sinner is definitely conscious that he is resisting 
doctrinal authority, and is deliberately determined not to give assent, no matter 
what be the teaching of that authority. In this case there is really a deliberate 
and pertinacious rejection of the very principle of faith, and a formal sin of 
heresy. 62 

The negative considerations, under the headings of temptations and ignor¬ 
ance and neglect in regard to faith, make clear the positive implication of the 
term pcrlinaciter. There must be a series of intellectual acts under the direc¬ 
tion and control of the will. The intellect must formulate an erroneous judgment 
of denial or doubt, must then come to some realization of the opposed doctrinal 
authority, must revert to difficulties and objections, and, under command of 
the will, must obstinately hold to the error by persistently considering the evi¬ 
dence supporting the objections, and by refusing to attend to the extrinsic 
evidence of the doctrinal authority. Etymologically considered, the word perti¬ 
nacious means holding firmly. Heresy consists precisely in holding firmly to 
error which is in some way known to be error, for reasons which may be true in 
themselves, but which do not justify the assent given to the error. Without this 
quality of pertinacity, there may be material sins of heresy,—erroneous acts 
of judgment which dc Jacto are opposed to revealed truth. With this quality, such 
acts arc formally sinful, and constitute the subjective element in the delict of 
heresy, and are the subjective reason for the serious penalties inflicted by 
the Church. 

61 Sole, Dc Dclictis , p. 223: Cliclodi, Jus Pocnalc. n. 57; Ballerini-Palmieri, Obits Thcol. 
Moral., II, n. 00. 

Lclimkulil, Thcol. Moral., I, a. 3C1. 






CHAPTER THREE 


THE DELICT OP HERESY 


Heresy has thus far been studied as a sin. This study properly concerns the 
moralist, since the sin of heresy, as such, is confined to the conscience of the 
sinner. If there is nothing more than the erroneous judgment and the sinful 
wdl which have been described thus far, the Church will deal with the matter 
in the court of the internal forum, as part of the regular administration of the 
Sacrament of Penance. It is only when the sin ol heresy is externalized that the 
individual is guilty of a delict,' and subject to judgment in the external forum 
of the Church, and punishable by the penalties contained in the penal legislation 
of the Fifth Book of the Oodc of Oa.n .011 Law. 

1 he first canon of this fifth book defines a delict as: 

"Externa et moraliter imputabilis legis violatio cui addita sit sauctio 
canomca saltern indeterminata.” 2 

That heresy in general is a violation of laws to which have been added canonical 
punishments, is too patent to need proof. But it may be advisable to note 
that these punishments are incurred only by an external and morally imputable 
act, and to indicate how these limitations affect the status of those who have 
committed sins of heresy. 

Ihe principle was established from early times that canonical punishments 
cannot be incurred by subjective sins. 6 There must be some external act, whose 
malice derives from the subjective sin, but whose effect is a disturbance of the 
life of the Church as a social bodyri It is for the regulation and protection of 
this social life that the punitive features of Canon Law have been established. 
Iencc, if an individual should commit a sin of heresy, but carefully restrict 
his act to thoughts, and in no wise manifest externally what he was thinking, 
he would be guilty of serious sin, but not of the delict of heresy. Such a state 
could never be known except upon his own confession. But if he confesses this 


r *J ,le 1 "’ Qrc5 rielict” is used hereinafter, instead of such words as crime or offense The 
Code no longer distinguishes crimen from delictum (Cf. Lega, Dc Judiciis III nn 15 37 and 
1 V1 ’ »• 17 . ™ tc a8 ’ for ,he old distinction.) Since'the Code use* the 
SS ” f0 : ‘i vei1 H 1C F‘"; est we may well adopt its English derivative, and thus 

the word 'Wime" atl ° n ° f C ‘ V1 aWS “ nd aVtl peiialtles which might be involved in the use of 

! Canon 2105, § 1. 

J "Cogitationis pocnam nemo patitur",— c. 14, D. I. de poeniknlia 

' Wernz, l.c., VI, n. 3; n. 153; Noldin, Dc Ccnsuris , n. 19. 

33 



34 


The Delict of Heresy 


35 


sin with the sole purpose of obtaining forgiveness, this forgiveness will be ac¬ 
corded according to the principles guiding the administration of the Sacrament of 
Penance, and without any application of the penal laws which are now to be 
studied. 5 * 

The second essential characteristic of a delict is that it be morally imputable. 
The external act must be (or at least must seem to be), the expression of a mind 
that is aware of, and a will that is freely committed to, a sinful act. The pre¬ 
servation of order, and the elimination of quibbling excuses, make necessary 
the provision that where the external delinquent act has been committed, the 
existence of sin be presumed. 5 In exceptional cases this juridical presumption of 
sin might lead to the imposition of penalties upon a person who in conscience 
was free from sin; however, such cases are rare, and in spite of them, the pre¬ 
sumption is reasonable and necessary. 

We therefore deal hereafter with heresy as an externalized, morally imputable 
violation of the Church’s law. And our first question concerns the mode of 
committing this delict. The first and obvious answer to this qucstion is that 
the delict of heresy is committed most commonly by words, written or spoken. 
This is the ordinary way of externalizing thought. A person who ponders a 
question of faith and arrives at a decision, will regularly express his decision 
in speech or writing; and if the decision be a pertinacious assent to error, he 
is guilty of the sin of heresy as soon as he makes a definite act of perverse will, 
and of the delict of heresy as soon as he completely expresses his erroneous 
judgment. The Code does punish certain delicts even if they are not carried 
through completely in actuality; thus attempted suicide is penalized by canon 
2350, §2. But the general principle is that only completed delicts incur penal¬ 
ties, and this applies to the delict of heresy. 7 Hence a person who intended to 
write a heretical doctrine which he had conceived, but only went so far as to 

5 Blat, Commentarium, III, pars IV, p. 242. Vcrmeersch-Creuzcn, Epitome, II, n. 6G0 inserts 
the word “extern?' in the definition of a heretic, 

0 Canon 2242, §1. This presumption may be disproved by demonstrating the existence of 

sonic one or more of the excuses recognized in canons 2201-2200. 

Note also that moral theologians distinguish between the sin of external denial of the faith 
(which presupposes that the sinner continues to believe interiorly), and the sin ot heresy, in 
which faith is rejected both externally and internally. The former is a sin against the com- 
mandment to profess the faith; the later is a sin against the commandment to assent inter¬ 
iorly But the canonist properly presumes a sin of heresy as the cause of external words and 
acts contrary to faith, until the presumption is shown to be wrong by contrary facts. Hence 
the same canonical punishments have always been imposed upon both types of sinners, 

7 C£ Canons 2228 and 2242, §1. On this basis, apart from considerations of subjective in¬ 

advertence, there is no delict of heresy in the ejaculations listed by Noldin, Dc Fmcccnlu, n. 

203 3. These words may suggest, but do not state heretical error. Again, a person who states 

heretical propositions as a part of a consultation in which he is seeking to learn the truth, is 

unquestionably guiltless of the delict of heresy, since the context proves that the propositions 
were not advanced as definitive judgments, but almost as questions; cf. Cappello, De Censurts, 
n. 64. 


j| The Delict of Heresy 

pen a few innocent words ol introduction, would not thereby incur the penal- 
| ties of heresy, although guilty of the sin. 

| Words are the ordinary, but not the only means of communication. Com- 
I plete externalization of thought may exist in signs, acts or omissions. Hence 
|j Pighi rightly states that if a person disbelieves in the Real Presence, and, in token 
| of this disbelief, deliberately omits to remove his hat in a Catholic Church, lie 
| has completely expressed his heretical tenet, and has incurred censure.* Noldin 
| cites the ease of those who seek to divine the secrets of the present, past or 
| future, which are known to God alone, by appeal to spiritistic activities; if 
s| these consultations are made by a person who is at least implicitly aware that 
| they have been condemned by the Church as both superstitious and heretical, 
| then the consultation expresses heretical belief, is a delict, and entails cen- 
jj sure. 5 * In these cases the subjective malice would give specific character to 
a these acts; but since the special significance of the act would not be clear, the 
| delict of heresy would remain occult. A judgment that everyone who consults 
I spiritistic media, or who wears his hat in a Catholic Church, is guilty of heresy 
| and excommunicated, would be unfair and without justification.io 
j The delict of heresy, then, can have many forms. All of them will be serious, 
| since in regard to faith there can be no partitas maleriae. To deny or doubt God’s 
I Omniscience and Veracity is essentially the same, whether it be in one matter 
I or another, in form of words or acts or omissions. When however a judge is 
■I determining whether or no a delict has been committed, he will properly look 
1 either for confession by the delinquent, or else some act which clearly and 
| definitely expresses a heretical mind. To this end the Code itself brands certain 
| acts as causing only the suspicion of heresy, because they may bo committed 
J by those who preserve the faith, although more commonly they indicate some 
| heretical tenet. 11 

j The very commission of any act which signifies heresy, e.g., the statement of 
some doctrine contrary or contradictory to a revealed and defined dogma, gives 
sufficient ground for juridical presumption of heretical depravity.' 5 There may 
j however be circumstances which excuse the person either from all responsibility, 
jf or else from grave responsibility. These excusing circumstances have to be 
1 proved in the external forum, and the burden of proof is on the person whose 
| action has given rise to the imputation of heresy. In the absence of such proof, 

| all such excuses are presumed not to exist. When satisfactory proof is offered, 

| ! Ceustirae Latac Sentcntiac, n. 52, 2. 

;j * Dr, Censurts, n. 58, a; cf. Sole Dc Dciictis, p. 223; Augustine, Commentary, VIII, p. 277; 

| also S.C.S.OH, July 28, 1847 —Collect, n. 1018; S.C.S.Off, Aug. 4, 1856,— Collect, n. 1128. 

:i 10 Thus, in the Decretals, the current heresy of the day was detected by the heretics refus- 
j to take oaths, or to admit their sanctity; by lay preaching; etc. The same acts and tenets 
;i today would not necessarily imply a heretical mind; cf. c.12, X, dc hacrcticis, V, 7. 
j "Cf. canon 2310. etc, 

3 n Canon 2200, §2, 




36 


The Delict of Heresy 


the juridical presumption will yield to fact, and the person will be pronounced 
innocent of heresy, and not liable to censure. 

Among the cases in which it is clear that no delict of heresy has been com¬ 
mitted, are the following. First, when a Catholic (or ether baptized person) has 
consulted a priest or other well-informed person in order to ascertain religious 
truth, he will frequently express liis own tentative views and difficulties in words 
which are per sc heretical. The circumstances make clear, however, that there 
is no pertinacity or definite judgment behind these words, and hence no delict 
of heresy. Again, Catholic teachers and writers will often state heretical views, 
in order that they may refute them. Statements of this sort do not express per¬ 
sonal judgments, and hence do not constitute a delict of heresy. Finally, Catho¬ 
lics treating of dogmatic subjects frequently forestall objection to their words 
and ideas by inserting a preliminary notice that they submit in advance to any 
authoritative correction which may be found necessary. In the event of some 
heretical tenet being discovered, the author will be called upon to correct his 
statements. If he does so, and thereby proves the sincerity of his previous 
submission to correction, there is clear evidence that he has never pertinaciously 
held to error, and hence he will not be accounted subject to censure or punish¬ 
ment. 13 

Somewhat more complicated is the case of a Catholic who denies his faith 
exteriorily in face of public or private persecution, but interiorily retains com¬ 
pletely his faith in what he denies. His words or acts are really lies, of a par¬ 
ticularly scandalous nature, and a violation of the commandment of external 
profession of the faith. There is no question as to the seriousness of the sin he 
commits; but it is likewise clear that it is not a sin of heresy, since interiorily 
he retains and actually renews his faith in the dogmatic truth he exteriorily de¬ 
nies. Moralists therefore teach that he has not committed a sin of heresy, and 
therefore is not bound, in the internal forum, by the censures which the Church 
attaches to heresy. 11 Canonists admit this teaching in theory, but are careful 
to add that in the external forum he has professed heresy (or apostasy), and has 
therefore made himself liable to the punishments inflicted on those guilt)' of 
these delicts. 15 In actual practice, the main distinction between formal here¬ 
tics and those who deny their faith under pressure, would seem to be that the 


latter will be more anxious to regain communion with the Church, and more 
ready to withdraw contumacy, and hence to seek and obtain absolution in belli 
the internal and external fora. 


13 Chelodi, Jus Pocnale, n. 57; Cappello, Dc Ccusuris, n. G4. 

H Gury, Comp. Tltcol. Morel., n. 210, n. 3; Donovan, Comp. Thcol. Moral., I tract V, n. 38, 
1; St. Alphonsus, Thcol. Moral., 1. II, tract. I, n. 19, 1. 

15 Chelodi, Jus Pocnale, n. 57. Cf. Benedict XIV, Constitution Inter Onmigenas, Feb. 2, 174-1, 
—Pontes Codicis J. C., n. 339, in which he treats of the duties of Ctitholics in face of Turkish 
persecution. He insists that they must profess their faith, and condemns various forms of 
external denial; but lie treats the offenders rather as sinners than as formal apostates. 


37 


j 

| The Delict of Heresy 

i In addition to the cases just cited, others may arise in which the delinquent may 
| claim the benefit of the excusing causes recognized by general law. These tire 
; familiar, and are here only briefly indicated. Any act due to physical force 
j which completely overmasters the person, is obviously not a delict for which 
s the constrained person is responsible. Thus a Catholic constrained against 
| his will to sign a declaration of heresy, or to trample upon a cross in sign of de- 
: testation of Christianity, 10 would not be personally responsible for his act, and 
I hence would not incur the penalties for heresy. 1 ' So too, any involuntary cause 
i which destroys the person’s ability to reason, renders any words or acts during 
j this period non-imputable. 18 Words or acts committed during sleep or while 
I the person is only partly awake, are clearly not imputable actions. Finally, the 
j Church has declared by express legislation that she will not apply to minors 
j under the age of puberty any penalization which is incurred ipso facto. Hence such 

• minors do not incur the excommunication attached to heresy; and this applies 
; even if the said minor has attained the use of reason and has actually sinned in 
! conscience. 15 

In other cases, circumstances may be alleged which do not exclude, but which 
i do diminish responsibility. Acts of heresy and apostasy have often been oc- 
I casioned by fear and violence. The Catholic finds that continued external pro- 
| fession of his faith exposes him (or those dear to him), to dangers involving life, 
; health, reputation, property and status. These threatened dangers may be due 
j to persecution by non-Christian or heretical public authorities, or to bigoted 
| individuals who have power to injure the Catholic. While the Church honors 

• a long list of martyrs and confessors who braved the worst of worldly evils, it is 
j likewise true that a certain percentage of Catholics have been and will be guilty 
\ of apostasy or heresy to avert harm from themselves. 

Obviously the delict under these circumstances has not the full malice which 
i would be present were the delinquent not oppressed by vis el metus. Moralists 
universally teach that sins committed under stress of grave fear are voluntary 


\ S.C.S.OfL, 1863,— Colled . n. 1235, 

; 17 Canon 2205, §1. 

Ia Canons 2201, 220G. For a detailed examination of imputability in eases of physical and 
psychical derangement, see ltobcrti, Dr. De/iclis ct Pocnis, nn. S3-121. 

15 Canons 2204, 2230. 'vermeersch, Moral. Thcol. II, n. 50, seems to suggest that, by virtue 
of canon 2230, baptized non-Catholic children may be admitted to active participation in 
; Catholic divine services, in as much ns “They arc not considered, formaliler, as non-Catliolics 
before they attain the age of fourteen.” The canon certainly indicates that they are not 
formally excommunicated, and hence tire not excluded directly by canon 2259. However, they 
j derive from their parents a non-Catholic status which cl carl v renders such active participation 
improper. The decisions of the Holy Office make no distinction of age in banning heretical 
! children: cf. June 22, 1S59 .—Collect, n. 1170; Nov. 20,1S50 ,—Colled, n. 1053. Participation in 
•singing is reprobated, May 1, 18S9,—- Collect. n, 1703; or at most tolerated for schismatics 
where it cannot well be avoided, Jan.24,1906,— Collect, n. 2227. Such children are not to be 
altarboys at any function, Nov, 20, 1850, Collect, n. 1053, ad 2 ; July 7, 1804,— Collect, n. 1257, 
ad 2 . Cf. also S.C.S.Off, liu.fad Ep. Harlemen.) April 0, 1S59 ,— Forties Codicis J.C., n. 950. 


i 

i 






38 


The Delict oj Heresy 




n 




The Delict of Heresy 


39 


simpliciter, but involuntary per accidens . 20 The delinquent may seek to be ex¬ 
cused, claiming that his act is similar to that of a Catholic who abstains from 
attending Sunday Mass through fear of threatened sickness, or to that of a 
Catholic who attacks the validity of a marriage into which he entered under 
threats and duress. It is true that the cases cited are recognized instances in 
which fear and violence are sufficient to release the Catholic from responsi¬ 
bility.:” But the parallel with the heretic's delict is not to be admitted. Attend¬ 
ance at Mass is required by an ecclesiastical law, which does not oblige sub 
tan to incommodo. Marriage contracts are of a privileged character, and will be 
voided when either party has been deprived of full liberty. But external pro¬ 
fession of apostasy or heresy is covered by the well known moral and canonical 
principle stated in canon 2205, §3: 

Si actus sit intrinsece malus aut vergat in contemptum fidei vel 
ccclesiasticae auctoritatis vel in animarutn damnum, causae de quibus 
in §2 [metus gravis, etiam relative tantum, necessitas, imrno et grave 
incommodum] delicti imputabilitatem minuunt quidem sed non aufer- 
unt. 

The individual subjected to fear or violence as described above, has always the 
choice of braving the dangers threatened, or of avoiding them by a forbidden 
act. His choice (except in the rare case in which fear totally overthrows his 
reason) is a free and deliberate act, in which he is consciously rejecting obedi¬ 
ence to duty, and choosing the sin of violating law. He may make this choice 
with some repugnance, and wish that he were not thus impelled toward sin; 
but if he docs choose the sin, it is by a free and voluntary exercise of his own 
will. Moreover, in choosing heresy or apostasy, he is choosing something which 
is in contempt of faith and ecclesiastical authority: for he is rating something 
as a higher guide than his faith—namely his wordly well-being. He is likewise 
prejudicing the welfare of souls, for his apostasy or heresy is a scandal (in the 
theological sense of the term) to others,—a bad example which may readily 
serve to mislead other Catholics or to harden the persecutors in their sin. All 
this makes plain why', despite their plea, the Church has always held such 
delinquents responsible, and applied to their delicts the full penalization of 
heresy. 2 ® 

A second very’ common excuse for acts of heretical import is that they' were 
committed in ignorance. In this matter, the familiar distinction of the various 


3 ° Cf. Gury-Ballcrini, Comp. Thcol. Moral., I, 19-20; Noldin, Dc Priucipiis , n, 54-5S; etc. 

31 Noldin, Dc Pracccptis, n. 237, e; De. Sacmmcntis, n. 010. 

» Lehmkuhl, Thcol. Moral, I, n. 25, 1. Note that moralists, under proper restrictions, allow 
the Catholic to keep his faith, hidden, not by denying it, but by avoiding a public profession 
of it; cf. Noldin, De Pracccptis, n. 21 sq; Lehmkuhl, Thcol. Moral, I, n. 292 sq. Where the 
Catholic avoids the sin of denying the faith, he can urge that his act is not morally imputable, 
and not subject to censure; cf. canon 2205, § 4. 


- 


• ;i 
; 

; -i 

:'A 



degrees of imputability finds ready application. There is some ignorance, even 
in matters of faith, which is inculpable. In our day as in Paul’s, “How shall 
they call on Him in Whom they have not believed? Or how shall they believe 
Him of Whom they have not heard ? And how shall they hear without a preach¬ 
er?” 23 Nor should this text be restricted in its application to purely' pagan locali¬ 
ties. Even in our own nominally Christian country, there are many who belong 
to some non-Catholic sect or to no sect at all, and there are even some Catholics, 
who hold erroneous tenets with every evidence that they do so in entire good 
faith and honest acceptance of what seems to them to be truth. 23 

However often the truths of Catholic faith be stated, the fact remains that 
there is likewise counterstatement of non-Catholic errors; and however authori¬ 
tative be the testimony' to the truths of revelation, there is likewise a specious 
authority supporting the modern tenets destructive of individual dogmas and 
of faith in general. Outside the faithful, many have been so reared in anli- 
Catholic prejudice that no formulation of words really reaches their minds and 
impresses their intellects as possessed of any conclusive force or moral value. 
Others, even Catholics, have been taught by those who seem to have a deserved 
prestige as educators and writers, that all religion is a myth, with no value 
as historic truth, but only some poetic or inspirational charm. Such teachings 
erect psychological barriers to the entrance of truth, for which the person him¬ 
self seems little responsible, and for which education and environment must be 
blamed. In such cases, since the person has not received a presentation of 
religious truth which is adequate for him, it seems entirely proper to hold that 
any erroneous doctrines which he might hold or utter would derive from incul¬ 
pable ignorance. He will indeed be presumed, under canon 2200, §2, to be juridi¬ 
cally' responsible in the external forum. But in the internal ferum of conscience, 
a confessor could with assurance find him guiltless of sin. Moreover, an in¬ 
dividual might conceivably wish to assert this claim of inculpable ignorance 
in the external forum. 25 If he could offer sufficient proof of his claim, the judge 
would find him guiltless there too. It may even be stated, on the authority of 
priests who have dealt with non-Catholic consciences, that this absence of per¬ 
sona! guilt is not so much the exception as the rule: and that the censures of 
canon 2314 apply to the ordinary non-Catholic only by juridical presumption, 


53 Rom. X,14. 

31 Cf, Calk. Ettcycl, “Heresy'', VII, p. 256; “a man born and nurtured in heretical surround¬ 
ings may live and die without having a doubt as to the truth of his creed .... It is not for 
men, but for Him Who searchcth the reins and the heart to sit in judgment on the guilt which 
allaches to an heretical conscience." The recognition of the possibility of this good faith is 
seen in concessions by moralists in regard to internal forum judgments; cr. St. Alphonsus 
Thcol Moral, II, tract. I, n. 19, 5. 

33 Since the person would, e.v kypothesi, not be contumacious, it would be easier to submit 
to absolution than to seek to prove that absolution was not needed; and the absolution in the 
external forum is justified by canon 2200, § 2. 


i 

i 

i 

I 






40 


The Delict of Heresy 


and not by actual guilt. 28 Certainly many non-Catholics, at the time of their 
conversion, state that they had abandoned their errors promptly when they 
attained the grace of faith, and there is no reason for holding this intrinsically 
impossible. 

Whatever may be the general case, there certainly are cases, among both 
Catholics and non-Catholics, which differ from the above by being culpable 
in various degrees. 27 The psychology' of their acts has already been described. 
It remains to consider what effect the various degrees of guilt have upon the 
delict as external violation of penal law. 

The general principles are set forth in canon 2229. In the first section of this 
canon, it is stated that affected ignorance is not acceptable as an excuse for the 
delict, and seems rather to be an aggravation of guilt than an excuse from re¬ 
sponsibility. 28 The second section reads as follows: 

Si lex habeat verba: praesumpserii , ausus fucrit, scienter, studiose, 
temerarie, considto egerii aliave similia quae plenam cognitionem ac 
deliberationem exigunt, quaelibet imputabilitatis imminutio sive ex 
parte intellectus sive ex parte voluntatis eximit a poenis latae sen- 
tentiae. 

At first reading, this principle would not seem to apply to the law governing 
heresy, since canon 2314 contains none of the words italicized in the text just ; 
quoted. However, as has been emphasized above, the definition of heresy con¬ 
tains, as one of its essential elements, the word “ pertinaciler ,” and “perlinaciter" 
means in D’Annibale’s phrase, 29 "sciens nolens." The very essence of heresy is 
that it be a knowing, deliberate, presumptuous rebellion against the authority 
of God and the Church in the matter of religious belief and profession. Hence 
the definition of heresy includes a term which is one of the "alia similia quae plc- 
nam cognitionem ac deliberationem exigunt." 

All this has immediate application to cases where the delict was due to cul¬ 
pable ignorance, whether crass and affected, or culpable simpliciter. Ex hypothesi, 
the delinquent is ignorant that he has doubted or denied a revealed truth, and, 
as noted above, is responsible in conscience for neglect only. This means that 
his delict, while still serious, is less imputable than the delict of a conscious 
heretic. Hence, by application of the canon just cited, the delinquent escapes 

29 Cf. Augustine, Ep. ad Tilum, Migne, P.L. XXVI, 59S: "Qui sentential!) suam, quamvis 
falsam atque perversam, nulla pertinaci animositate defendant, praesertim quam non nudneia 
suae praesumptionis pepererunt sed a seductis atque in errorem lapsis parentibus acceperunt, 
qnaerunt autem cauta sollicitudine veritatem, corrigi parati cum invenerint, nequaquani 
inter haereticos deputandi." In this same sense, see c. 20-31, XXIV, q: 3. 

For the general discussion of degrees of culpability, see Wemz, Jits Decretalium, VI. n. 21; 
I.ega, De Delictis , p. G3; Robert), De Delictis, n, 76, b: Lehmkuhl, Thcul. Moral., I, n. 18. 

72 Wemz, o.c., VI, n. 159, not. 72: Sole, De Delictis, n. 115. 

22 Commentarium in Constitutionem “Apostoiicae Sedis", n. 31. 


i 

The Delict of Heresy 41 

I tl7e !ataa sententiae penalties decreed against heresy. It must be immediately 
:j noted, however, that this ignorance must be proved. By virtue of canon 2200, 
§2, the fact that a delict has been committed establishes a presumption that 
-I the delinquent was fully responsible. A mere assertion of ignorance will not 
j suffice. Lay persons will be able to prove this claim more easily than clerics, 
| non-Catholics more easily than Catholics. 

I Heretics, who can allege and prove none of the extenuating circumstances 
. noted above, are subject to the legislation of canon 2314, §], n. I, which pro- 
I vides an ipso facto excommunication. This basic excommunication is the penalty' 
I incurred by all heretics, whether or no they are guilty of other aggravating delicts 
■J which are mentioned in the succeeding numbers of the same canon and section. 
I ^ may therefore be called simple heresy, with the term “simple” used in the 
i sense of the Latin "simpliciter.” 

The second number of canon 2314, §1, deals with the punishments to be 
| inflicted on a heretic who adheres to his heresy despite the punishment in- 
-j fficted by the first number of the canon, and despite canonical warnings issued 
to him personally by a judicial Superior. Obsordescentta in peccato novum de- 
j liclum constilmt.M This perseverance in heresy involves at least virtual repetition 
j °E the original delict, with ever greater contumacy and pertinacity, and hence 
i greater guilt. This properly leads to the imposition of juridical infamy', to 
: privation of any benefice, dignity, office or other charge the heretic may have 
: held, and finally (in the case of clerics and after a second warning) to deposition. 

The third number of canon 2314, §1, concerns those heretics who add to their 
i original delict by joining or publicly adhering to a non-Catholic sect. Thereby 
: the delinquent accepts the status of one who not merely rebels against doc- 
I trinal authority, but likewise co-operates and participates in organized religious 
| teaching and worship other than that established by Christ, and at the same lime 
| gives even greater scandal than would be given by the delict of heresy alone. 

; Properly, this aggravated delict is punished more severely than simple heresy. 
Juridical infamy is automatically incurred. Clerics, by virtue of canon 188, §4, 
are declared to have automatically resigned their benefices or other offices; and, 
i after canonical warning, are liable to degradation. 

These penalties will be studied in detail in the following pages. Tn this con- 
;■ nection, a further distinction must be made which will constatly recur,—be¬ 
tween the sentenced and the unsentenced heretic. The latter is a heretic who is 
; fiound by the ipso facto excommunication attached to the delict of heresy, but 
| w ho has not been personally dealt with by the judicial authorities of the Church; 

he has been excommunicated by the law itself, but has not been sentenced by 
) ecclesiastical officials. The former is a heretic whose delict has come to the 
; official notice of the Church, has been proved in judicial process, and has been 


30 Vermeerscl)—Creusen, Epitome, III, n. 513. 



42 


The Delict of Heresy 


made the basis of either a condemnatory of declaratory sentence. All this will 
be discussed in following chapters. It is here noted that the term “sentenced 
heretic” will be used as a translation of the phrase “post senlentiam declaratonani 
■eel condenmatoriam," which occurs frequently in the text of the Code. 


CHAPTER FOUR 

PENALTIES ENTAILED BY HERESY 

The Church is a society commissioned to teach the truths of doctrine and 
morality which God has revealed. As a society, she must regulate her mem¬ 
bers, and, particularly, judge and penalize any of her subjects whose life and 
actions disturb the welfare of his fellows. 1 * Since the dissemination of revealed 
truth is the primary activity of the Church, the greatest possible offense against 
the Church as an organization is an action which adulterates this truth with 
error. 

Hence it is that delicts of heresy and apostasy are dealt with most severely. 
The Church uses every effort to dissuade her subjects from sins against charity, 
justice, temperance and all the other virtues. But, save in rare instances, she 
does not punish offenders against these virtues with penalties of the external 
forum, no matter how grave be the sin. Rather, she deals with the sinner through 
the tribunal of Penance, in the internal forum of conscience.* In striking contrast, 
delicts against faith are visited with her heaviest punishments. The heretic im¬ 
mediately incurs excommunication, and is liable to further vindictive punish¬ 
ments. The reason is plain. Heresy indicates such a destruction of the Christian 
character of the delinquent, and, being externalized, has such potentialities of 
hindering and preventing the teaching of revealed truth to others, that im¬ 
mediate and decisive action must be taken to prevent any spread of the con¬ 
tagion of error. 

All this may sound strange in an age of religious indifference, when even 
Catholics are apt to give more attention and care to morals than to faith; but 
it is the logical and necessary consequence of the possession of God’s revealed 
and final truth, and as such is justified in the judgment of all save those who 
would deny the existence of such truth, or its importance. It is as an applica¬ 
tion of these principles that the Church punishes the delict of heresy in its 
various forms. And, considering first the delict of simple heresy, the Church 
decrees: 

“Omnes a Christiana fide apostatae et omnes et singuli hacretici aut 
schismatici incummt ispo facto excommunicationem.” 3 


1 C.l, D. IV, states: ‘'Faetne sunt autem leges lit earum metu cocrccatur humana audacia, 
tutaque sit inter iinprobos innocentia, et in ipsis improbis formidato suppllcio rei'rcnetur 
nocendi facultas." As to the general right to inflict punishments, cf. canon 2214. 

Wemz, Jus Decretalium, VI, n. 14, 2; Lega, De Detictis, p. 25. 

3 Canon 2314, § 1, n. 1. 


43 




44 


The Delict of Heresy 


45 


The Delict of Heresy 

Excommunication is never anything except a medicinal penalty. 4 It con¬ 
sists in the exclusion of a delinquent from the communion of the faithful, with 
definite consequences which are set forth in the provisions of law. Excom¬ 
munication is not imposed for a definite period of time, whether of years, months 
or days; but simply until the delinquent shall have been brought to repentance 
of his fault and to amendment of life. Once this purpose has been obtained, 
and the delinquent proves the reality of his amendment by repairing any 
damage or scandal his delict may have caused, the Church’s judicial officer 
must immediately absolve him from the excommunication. 5 

A delinquent guilty of the simple delict of heresy (who therefore has not 
continued in rebellious disregard of canonical warnings and punishments, nor 
joined any non-Catholic sect), incurs ecclesiastical excommunication in its 
simplest form. It will be easier to examine the implications of the excommunica¬ 
tion in the next chapter, by way of contrast with the status of the sentenced 
heretic. Hence the following table merely summarizes the canonical meaning 
of this term: 

a. general exclusion from the communion of the faithful; (canon 

2257); 

b. status of a ioleralus; (canon 2258); 

e. loss of right to assist at divine offices, save the preaching of the 
word of God; (canon 2259); 

d. prohibition of the reception of the Sacraments; (canon 2200); 

e. prohibition of active ministration of the Sacraments and Sacra- 

mentals, save in special cases determined by law; (canon 2201); 

f. loss of participation in the indulgences, suffrages, and public pray¬ 

ers of the Church; (canon 2202); 

g. prohibition of legitimate ecclesiastical acts; loss of right to be 

plaintiff in ecclesiastical courts; prohibition of fulfilment of 
ecclesiastical charges and offices, and of enjoyment of privi¬ 
leges previously granted by the Church; (canon 2203); 

li. prohibition of acts of jurisdiction; (canon 2264); 

i. prohibition of participating in appointments to ecclesiastical office, 
or of being appointed thereto, or of receiving Orders; (canon 
2205). 

This long list of prohibitions and exclusions is summed up in the single term 
excommunication, and all of these penalties are inflicted together upon every 
excommunicate, and continue together until the censure is removed by abso¬ 
lution. 6 

4 Vermcersch-Creuscn, Epitome, III, n. 456, 1. 

s Canons 2241, !} 1; 2242, § 3; 2248, § 2. 

6 Canon 2257. 


The application of these penalties will be examined in more detail in the 
chapters treating of the canonical punishment of the sentenced heretic.’ Post- 
| poning until then all details, the fact may now be noted that the simple heretic 
will in most cases be able to take advantage of the legislation by which the 
Church mitigates her punishments in the ease of occult delicts. 

An occult delict is defined as one which is not public; which has not been 
noised abroad, and took place in such circumstances that it will not be noised 
abroad. 8 An act has been committed sufficient in its nature and in the circum¬ 
stances to be a full violation of a canonical penal law, and hence is a delict; 
it could have been understood as a delict, had any observer been present, or, 
being present, had the observer adverted to the act; but it so happened that 
i no observer did advert to the act, or at least no observer was aware of the 
i identity of the delinquent. Occult delicts are distinguished from public delicts, 

, which are known to the community, or to a small group which will almost inevi¬ 
tably make the delict known to the community; and from notorious delicts, which 
have been committed under such circumstances that they cannot be con¬ 
cealed by any artifice, nor excused by any subterfuge of law (notoriety of fact), 
or else have been juridically proved by process of law and so entered upon 
official records (notoriety of law). 9 

The application of these classifications to delicts of heresy is easily made. 
All sentenced heretics are notorious at least with notoriety of law. Some simple 
heretics and some heretics who join a non-Catholic sect may be notorious in 
fact, but the rest, representing perhaps the ordinary ease, will be only occult 
delinquents. Thus, a Catholic might say, deliberately and sinfully, that he 
did not believe in the Real Presence; and yet his words might pass unnoticed, 
since this disbelief is common in our community, and the auditors would be in 
no wise surprised at hearing this doctrine expressed and hence promptly forgot 
the utterance; or else the auditors were a small and select group who can be 
trusted not to manifest the commission of the delict or in any way to bring it 
j to the attention of the community or to the Church’s judicial inquisition. 10 
| Such a delict would be truly occult; and it may well be added that ordinary 
j private individuals in our communities rarely can attain genera! notoriety by 
| sins against faith. Our urban civilization makes for a social anonymity, and 
j modern indifferentism causes the public to be little interested in the vagaries 
i of individual belief. 

! Hence the canons relating to occult delicts have a very common application 
i to delicts of heresy. These laws are generously conceived, despite the first 
;i- 

I 7 Chapters Five and Six. 

a Wemz, Jus Decrelalium, VI, n. 17; Sole, De Delictis, nn. 9 & 10 Legu, De De’ictis. p. 31, 
i Wemz's phrasing had been adopted in the Code. 

| s Canon 2197. 

i 10 D’Annibalc, Summit Tkeol. Moral. 1, n. 242, not. 49. 



4G The Delict of Heresy 

principle that must be insisted upon. This first principle is that all persons 
conscious of having committed a delict of heresy incur excommunication ipso 
facto," and are bound in conscience to observe the various spiritual privations 
implicit in this penalty, even though no external compulsion is exerted against 
them. 12 In civil law, punishment is always inflicted by the coercive power of 
the state. If the state fails to act, the citizen is not expected to penalize him¬ 
self. But in the Church’s life, much can be and is left to the conscience of the 
individual, and the Church can and does require the individual to enforce 
laws against himself as a duty of conscience. She particularly provides that 
those who incur excommunication by an occult delict shall consider them¬ 
selves bound by this censure in both the internal and external forums, and 
that they shall do this without waiting for judicial decisions or other compul¬ 
sion by ecclesiastical superiors. As was stated above, delicts of heresy are very 
apt to be occult, and hence peculiarly subject to this legal principle. It cannot, 
be stated too strongly that despite the occult character of the delict, the ex- 
communication binds the delinquent from the moment that his delict is com¬ 
plete. 13 

The Church does, however, make certain generous concessions to the occult 
delinquent. In immediate connection with the general principle just quoted, 
the Code goes on to say: 1 -' 

Ante sententiam deelaratoriam a poena observanda delinquens 
excusatur quo ties earn servare sine infamia nequit, et in foro externo 
ab eo eiusdem pocnae observantiam exigere nemo potest, nisi delictum 
sit notorium, firmo praescripto can. 2223, §4. 

Hence an occult heretic is permitted to continue acting in the external forum in 
such a way as to safeguard his reputation as a faithful Catholic; and no one 
has the right to force him to observe the full scope of excommunication except 
the Superior who issues a judicial sentence.'* Sole explains this as an applica¬ 
tion of the natural law: Nemo tenetur proderc seipsnm . 10 Ayrinhac prefers rather 
the principle that no one should incur punishment unless his guilt is certain, 17 —a 
principle which here means that in public estimation no one can be held cer¬ 
tainly guilty unless the commission of the delict is judicially determined, or is 
entirely notorious in fact. 

11 Canon 2314, §1, 1 . 

12 Canon 2232. 

13 Canon 2228. 

» Canon 2232, § 1. 

11 It is obvious, but perhaps needs explicit statement that the judicial Superior is not a 
parent or friend, nor a curate nor even a pastor; but only the Bishop or the Holv Office or 
their delegated officials. Cf. cannons 1572, sq. 

,e De Delictis, n. 12G; of, Vermeersch-Creusen, Epitome, III, n. 420. 

17 Penal Legislation, p. 73. 


I The Delict of Heresy 47 

I This legislation goes far to ease the condition of an occult heretic. Whether 
I he be cleric or layman, he may continue to do anything in the external religious 
1 order, the omission of which would cause the community to suspect that he 
1 was guilty of serious crime, is Thus a layman who had always sung in a choir at 
High Mass, or acted as master of ceremonies, and who could not suddenly cease 
these active participations without incurring obloquy, is free to continue, and 
does not thereby violate the provisions of the law of excommunication. O 11 the 
other hand, he is bound in conscience to abstain from religious acts which arc 
not necessary for the preservation of his good name, and which arc forbidden to 
excommunicates; thus if he were invited to join a choir of which he had never 
been a member, he is bound to refuse, since in any ordinary case this refusal 
will not incriminate him. Clerics guilty of occult heresy may likewise act in 
necessary matters as if they had not been censured; and since the cessation of 
religious activities would commonly occasion public disgrace, they will be free 
j in most cases to continue their religious ministrations. As will be stated below, 

| the Code permits publicly excommunicated clerical delinquents to administer 
; Sacraments and Sacramentals, at the request of the faithful .' 2 This permission 
' applies a fortiori to the occult clerical heretic, whose status is entirely unknown 
to the faithful. 

A complication may here be noted, which may arise in connection with oc¬ 
cult heresy, which, from the nature of tile case, cannot arise in cases of sen¬ 
tenced heretics. Many occult heretics will admit that they are guilty of sin, 
but profess ignorance that the Church had attached penalties to their delict! 
We have already discussed ignorance that their act was heretical. This is an 
entirely different claim; they admit the heresy, and urge only that they were 
not aware that they would be excommunicated for their external act. 

As regards this claim, the same general principle holds as in any case of ig¬ 
norance. the violation of a promulgated law gives rise to juridical presumption 
that the law was known and deliberately flouted . 20 In civil law the ignorance 
that penalties would be assessed for a given act is never accepted as an excuse. 
The Church is more anxious to fit the penalty to the delict, and weighs all the 
circumstances affecting the moral guilt . 21 She does however, require that these 
extenuating circumstances be not merely alleged, but proved in the external 
forum . 22 Hence the occult delinquent’s claim that he was ignorant of the penalty 
must be supported by demonstrable facts. Moreover, canon 2202 , § 2 , detcr- 

This legislation concerns only the prohibition deriving from the censure. Despite this 
permission, the delinquent may still be bound to abstain from religious acts bv the fact that 
he is in the state of mortal sin, where such acts would be sacrileges. 

13 Canon 22fil, § 2, up to the moment when a judicial sentence is imposed. 
s " Canon 2200. 

21 Canon 221S, § 1. 

!! Canon 2218, 52 . 




48 The Delict of Heresy 

mines the weight such an extenuating circumstance will have by stating that 
mere ignorance of the penalty docs not remove all imputability from the delict, 
but only diminishes it. 53 

With these principles in mind, the general facts concerning certain classes of - 
delinquents may be noted. First, if the delinquent making this claim be a ■ 
cleric, his pica for mitigation must be dismissed, either as untrue, or else as 
indicating ignorance which is affected, or at least crass and supine. His ecclesias¬ 
tical training in the seminary, with its moral and dogmatic theology, its eccle¬ 
siastical history, not to mention its canon law, all insure that the Church's atti¬ 
tude toward heresy was imparted to him. Thereafter his professional associa-, 
tions and his contacts with Church affairs offer further guarantee that he had 
ample opportunity to know about heresy. Hence his present ignorance is unreal; 
or, if it be real, it can be explained only as deliberately fostered—affected 
ignorance,—or else as the result of a complete failure to do even a minimum 
of work in regard to fundamental ecclesiastical theory and practice,—crass and 
supine ignorance. Under canon 2229, §1, and §3, n. 1, affected ignorance 
would not excuse from the penalty of excommunication; but crass and supine 
ignorance, if it really existed, would excuse. 

If the occult heretic was an ordinary American lay person, the claim would 
have more weight. The ordinary lay Catholic has had in childhood a certain 
amount of religious training, chiefly in terms of the catechism and the routine 
of ordinary life. Thereafter he hears sermons and instructions, and occasionally 
reads something of Catholic books and papers. In addition he observes the 
practical life of the Church in his parish and diocese, and to some extent in 
the world at large. From all this he derives whatever knowledge he may have 
of the Church and her legislation. 

It may safely be stated that this training will scarcely inform the ordinary 
Catholic of penal legislation in general, and of the penalization of heresy in 
particular. He would rather be apt to think of heresy as a sin, an offense against, 
the virtue of faith, than as a delict against the Church as a society. He might 
well advert, before or during the commission of the act of heresy, to tire fact 
that this is a serious sin, and that it would merit severity when confessed. He • 
might even think that it was the sort of sin for which a penitent would be tern-: 
porarilv refused absolution, and told to return after a period of waiting 3 '. All 
this is quite compatible with ignorance that heresy is judged and punished by 
the Church in the external forum. Moreover, if he did know the term cxcom- i 

a Worn?. (Jus Dccretalium VI, n. 21) held that the penalty was inflicted on the sin, and that , 
ignorance o£ the penally was an immaterial circumstance. This view was in singular contrast 
to cvcn p re -Code teaching (Cappcllo, De Censuris n. 77), and in any case is overruled by the. 
Code. 

51 This reservation of absolution for sins is sometimes the only idea which lay persons have. ; 
and their understanding of the terms "excommunication", "censure", etc. 


3 


| The Delict of Heresy 49 

| inunication, and did further know that it was applied to heretics in the past, 
} there is still room for non-advertence to the imposition of the penalty' in the 
| present. There are many who think that all Church law regarding heresy is as 
l obsolete and ineffective as the medieval courts of the Inquisition. 

| Under these circumstances, and subject to exceptions for laymen whose 
] religious training and opportunities for knowledge were more extensive, the 
judge who passes upon the claim of ignorance of penalty may' justly find that 
the ignorance was real, and that culpability for this ignorance was non-existent, 
or very small. This does not mean that the delict of heresy is to be entirely 
condoned, since, by canon 2202 , § 2 , the imputability of the delict is merely 
diminished; but it does mean that the judge must find that the medicinal 
penalty of excommunication was not incurred 33 by the action of the delinquent 
while he was thus ignorant; and if he is now repentant, there is need only of 
punishing him with some exemplary penalty. If however the delinquent is still 
contumacious, he is now combining contumacity with complete knowledge of 
both delict and penalty, and incurs the full excommunication by his present 
acts and words reaffirming his heresy. On this basis, if no other, all sentenced 
heretics are excluded from entering this claim against their censure. 

There is one practical application of this theory of the diminished imput¬ 
ability of lay occult heretics. A confessor who verified this ignorance in a case 
| presented by a penitent in the confessional, can judge that the penitent has 
: not incurred excommunication by his sin, and that therefore the sin itself is 
not reserved. He may therefore absolve from the sin by his ordinary powers, 

; without seeking special faculties from the Bishop . 26 This absolution ap- 
. P lies 011 >y to the internal forum . 23 If the delict afterward becomes known and is 
made the basis of a declaratory sentence, this absolution of the internal forum 
cannot be urged in the external forum. Unless the delinquent satisfies the judge 
of the external forum of his ignorance, he is held responsible for the delict he 
committed. On the basis of this possibility of incurring censure in the external 
forum, it may be well for the penitent to seek external absolution as well as that 
received in the forum of conscience. Where the delict is now occult and m all 
probability will remain so, this recourse to external judgment will not be neces¬ 
sary. 

A third group is composed of those baptized and educated outside the Church. 
These individuals must be presumed responsible both for the acts of simple 
heresy which they commit, and likewise for their membership in a 11011 -Catholic 
sect . 26 It has been already noted that many of them may honestly enter the 

34 Canon 2220, §3, n. 1. 

- 5 1 lie reservation of canon 2314, § 2, is rations ccnsursac, and docs not exist where the 
censure does not obtatn; cf. canons S94 and 2240, 1(3. 

33 Canon 2251. _ 

31 Canon 2200, § 2. "-1 T/S-v. 

ten flic, 

\ L I B R A R Y) 

„ A' 





50 


The Delict of Heresy 


plea that they were in inculpable ignorance that they were sinning against 
divine and ecclesiastical revelation. They may with even more probability plead 
ignorance that they were subject to canonical penalties. What is unkown to 
most Catholics will a fortiori be unknown to non-Catholics. 

Ordinarily, however, this plea will not be urged in the external forum.^ The 
Church generally comes to a discussion of their status only when such individuals 
are converted and seek entrance into the Catholic communion. The converts 
will quite universally adjure their errors, and accept absolution from censure in 
the external forum, all without raising the question of their juridical responsi¬ 
bility for previous material acts of assent to false doctrine and violation of 
Catholic ecciesiatical law. 


********* 

The discussion thus far has been confined to the simple heretic, and to the 
basic excommunication which is incurred by the commission of this delict.. 
Canon 2314 imposes penalties upon two further offenses which arc aggravated 
forms of the delict of heresy. Obdurate heresy,—cases in which the delinquent 
perseveres in his erroneous tenets despite official correction by judicial superiors, 
_receives a very severe punishment which will be examined in detail in the fol¬ 
lowing two chapters. The essential note of this aggravated delict is the fact that 
the heretic continues obstinately to hold to his error despite clear knowledge that 
all the forces of the Church, her teaching authority and her judicial and coercive 
authority, are arrayed in condemnation of the heretical doctine. fliis state of 
obsordcsccntia of its nature indicates that there is no possibility that the heretic 
is in ignorance of the malice of his sin. The heretic’s acts or words have been 
judicially established as heretical, and perhaps have been made the basis of a 
declaratory sentence. Furthermore, the heretic has been warned of impending 
canonical proceedings in which the heinousness of his delict is amply indicated 
by the grave punishments which are threatened if lie show continued con¬ 
tumacy. All of this indicates that heretics who are guilty of the delict punished 
by the second number of this first section of canon 2314 are necessarily formally 
guilty in both the internal and external fora, and that none of the excuses and 
extenuating circumstances considered above can be alleged in their favor. 

The penalties established for heretics of this type include, first, a privation ot 
any benefice, dignity, pension, office or other charge which the heretic may have 
hitherto held in the Church, together with juridical infamy. The words of the 
canon “priveniur bcneficio, dignitate, pensione, officio, aliovc mnnere, si quod tit 
Ecclcsia habcant ,” are designed to cover any and all cases, and to leave the delin¬ 
quent without any pre-eminence of place or position; so that, even if he later 
repents and returns to the communion of the faithful, he can do so only as a 
simple member of the Church, without any rank above that of the ordinary faith¬ 
ful. This penalty presupposes that the heretic had previously been served with a 


51 




The Delict of Heresy 

| canonical warning, and that the warning had not been heeded, in the sense that 
["I die heretic did not recant within the time specified for that purpose. In the 
case of clerics, a further process may be instituted, beginning with a new warning; 
J if (: h' s warning goes unheeded, and the heretic is thus proved still to continue 
| pertinaciously and contumaciously in his error, a sentence of deposition may 

I issue. 25 
[ $ 

| These vindictive penalties may indeed be assessed against any heretic whose 
| delict can be judicially proved, and who thereafter refuses to recant and make 

II reparation. for the scandal and damage caused by his delict. This does not 
| mean that in actual fact every unrepentant heretic will bo so punished. The 
K bishop has the right and duty to determine when to urge these penalties, and 
| when to leave the heretic to his own conscience and the grace of God. 35 In actual 
,.-j practice, them are each year thousands of Catholics who fall into heresy or apos- 
j tasy. In the majority of cases their delict is noticed only by friends and rcla- 
| lives, and has nothing of public importance or notable scandal to call it to the 
| judicial attention of the Church. Even when the offense is notorious in fact, 
| so that the whole community knows that a former Catholic is now a heretic, 
| ! ,1C Bishop may consider that the general welfare will be better served by leav- 
| ing the delinquent to his own conscience, than by instituting a judicial process 
j which may be misunderstood in our non-Catholic age, as savoring of bigoted 

■ f persecution. What has been here remarked of Catholic offenders applies even 
1 more clearly to non-Catholic heretics. The result is that there are few cases in- 
1 dced * n which the process and penalties of canon 2314, §1, n. 2, will be actually 
1 invoked against delinquents. In general, it might almost be stated that such 
i action would be needed, here in the United States, only when some delinquent 
I would seek to retain an official place in Catholic ecclesiastical life, thereby 
■| scandalizing the faithful and damaging the Church. 

; Canon 2314, §1, n. 3, legislates for another aggravated form of the delict of 
| heresy; namely where the delinquent, in addition to his heretical words or acts, 

| formally joins some non-Catholic sect, or at least publicly adheres thereto. The 
| peculiar malice of this form of the delict of heresy is to be found in the fact that 
| the heretic is not merely guilty of personal errors in regard to revealed re- 
r j -'gious truth, but likewise has made himself a co-operator in the organized life 
| aild activities of a society opposed to the one true Church of Christ. The text. 
| of this legislation is as follows: 

j Si sectac acatholicac nomen dedcrint vcl publice adhaeserint, ipso 

facto infantes sunt, et, firmo praescripto can. 188, n. 4, clerici moni- 
tione incassum pracmissa, degradentur. 


i !I Canon 2314, §1, n. 2. 

i 10 Canon 2223. 


t;j 

J 




52 


The Delict oj Heresy 


The Delict of Heresy 


53 


Question may be raised immediately as to the meaning of the phrase “sectac 
acatholicac." Augustine states without discussion, as if the matter occasioned 
no difficulty: 

"A sect is any religious society established in opposition to the 
Catholic Church, whether it consists of infidels, pagans, Jews, Mos¬ 
lems, non-Catholics, or schismatics.” 31 

The following contrary doctine is stated by Vermeersch-Creusen: 

“Secta acatholica stricto sensu est coetus religiosus qui, etsi chris- 
tianum nomen retinet, catholicum fidem doctrina vel factis negat. 
Excludendi sunt ab hoc conccptu religiones non christianae, v.g., 
judaismus, muhamedanismus, etc., et socictates massonum, anar- 
chistarum, etc.” 35 

Cance quotes Vermeersch-Creuzen without comment, 33 and hence should be 
cited as approving this interpretation. Cocchi makes a significant revision, al¬ 
though he quotes the same authors as reference for his text: 

"Non agitur hie de sectis quae nullam religionem profitentur, sed 
de secta acatholica quae fidem negat doctrina aut factis; non compre- 
henduntur ergo hie massones, socialistae et anarchici.” 34 

Vermeersch-Crcuzen’s distinction is based upon the recognized popular dis¬ 
tinction between the term “sect,"—a recognized distinct group within a generic 
religious body,—and the term “religion,”—any one of the four or five great sys¬ 
tems of belief and morals to which the human race is devoted. In this meaning o( 
the terms, “religion" would refer to Christianity in general, to Judaism in gen¬ 
eral, and so following; while “sect” would refer to interior divisions of these 
bodies, such as the Methodists, Baptists, etc., among Christians, and the Phari¬ 
sees, Saducees, etc., among the Jews. On this basis, "secta acatholica'’ would be 
restricted in meaning to Christian religious groups other than the Catholic 
Church. 

It would seem that this restricted definition is too narrow in scope. In the 
first place, it is clear that the canon refers not merely to heretics, but to apos¬ 
tates as well. It is scarcely possible that an apostate, defined as one “qui 
tolaliter a fide Christiana recedit ," 33 would become a member of any Christian 
sect; whereas it is entirely possible that he would join one of the other world 


Jl Commentary, VIII, 279. 
i: Epitome, III, n. 513. 

w Le Code de Droit Canoniquc, III, 308, not, 3. 
s * Commentarium, V, n. 138. 

31 Canon 1325, § 2. 


| religions, such as the Buddhists. Moreover, Vermeersch-Creuzen admit, in this 
j very connection, that the word “secta” is used elsewhere in the Code in reference 
| to societies which are in no wise Christian , 36 and that the word “ acatholica ” is 
] likewise applied by the Code in an absolutely general sense . 37 Hence it would 
J seem to be a forced and unnatural reading of the canon to say that its penalties 
are incurred by Catholics who join the Episcopalian or Lutheran sects, but not 
| by those who join the Buddhists of the Theosophists. This doctrine seems im- 
i plicit in the changes made by Cocchi, 3 * and is explicitly supported by Meester, 

1 whose statement admirably sums up the matter: 

“Etsi probabilior nobis videatur sententia juxta quam agitur hie dc 
i quovis coetu religioso in quo apostatae, hacretici aut schismatici 
coadunantur, respuentes sive solum catholicismutn sivc etiam chris- 
tianismum, tamen probabilis et practice tuta apparet sententia Ver¬ 
meersch-Creusen. . . .” 39 

I Until some definitive interpretation is given by the Holy See, the stricter opinion 
ij cannot be enforced . 46 

i The Code specifics two wa 3 r s of committing this delict, formal inscription as 
a member of the sect, or the practical membership which consists in publicly ad- 
7 hering to it. The first would be a matter of record, and hence easy to prove 
1 juridically. It would obtain in those sects which provide a formal process of 
| admission and a recording of the names of those so admitted. The second ob- 
] tains in many other sects which do not practice a formal enrolling of members, 
j and in which membership consists merely in attendance and co-opcration in 
I religious practices. In the internal forum, this delict is complete, and the ipso 
j facto penalties are incurred by the first external act of sharing in the activities 
| °f the sect, informed by the delinquent’s intention to thereby renounce his 
| Catholic allegiance and to become one of the sectarian group. In the external 
| forum, such a single act would scarcely be a sufficient basis for judicial detcr- 
i ruination that the penalty was incurred (unless accompanied by the delin- 
! j quent’s confession of his intention), since the same act of attending sectarian 
; | worship may be performed by Catholics who attend non-Catholic weddings or 
j funerals, and yet have no intention of renouncing their faith nor of joining the 
} sect. 4 ' 

3 The joining of the non-Catholic sect may follow after the externalization of 

j __ 

i 

J 16 Canons 1340,§ 1; 693, § 1; 2335. 

j " Canons; 1099, §2; 1149; 1350; 9S7, § 1; 1657. Cf. Schmid, in Apullinaris, Oct.-Dec., 1931, 
j PP- 552 sq. 

3 38 Commentarium, V, n. 138, quoted above. 

: I 39 Juris Canonici Compendium , tom. Ill, pars 2, p, 23(5. 

\ *° Canon 19. 

j 11 Canon .1258, §2; Noldin, Dc Pracccplis , rm. 34-39. 




54 


The Delict of Heresy 


heretical error as a consequence, or may itself be the first external act which 
manifests the internal sin of heresy. In either case, the delinquent incurs first 
the basic excommunication inflicted on simple heresy . 42 In addition, as a penalty 
for his aggravated delict, he incurs juridical infamy ipso facto, whether or no 
there is further official action by the Church. This is quite independent of in¬ 
famy of fact, and may exist without the loss of reputation in the judgment of 
the general public. It is a juridical status, which consists of a series of incapaci¬ 
ties, which may be summed up as follows : 4S 

1 . irregularity, (canon 084), which prevents promotion to Orders; dis¬ 

qualification for benefices, for legitimate ecclesiatical acts, and for 
the fulfilment of ecclesiastical offices and charges, (canon 2294, 

§ 1 ): 

2. repulsion from any ministry in sacred functions, (canon 2294, §1); 

from acting as sponsor in Baptism, (canon 7(50, §2); and in Con¬ 
firmation (canon 796, §3); from receiving Holy Eucharist, 
(canon 855, § 1 ); 

3. incapacity as witness (canon 1757, §2), as expert (canon 1795, §2), or 

as arbiter, (canon 1931). 

Moreover, the Code provides that this juridical infamy can be removed only by 
dispensation by the Holy See . 41 

The juridical infamy here spoken of is incurred by all baptized persons who 
become members of non-Catholic sects. This legislation therefore includes all 
lay persons and all clerics who previously were members of the Church. In 
addition, it applies to all those who were validly baptized but were brought up in 
sectarian belief. In other words, Protestants, Nestorians, etc., must be pre¬ 
sumed responsible for their external acts in violation of the law of the Church, 
unless and unli’ the contrary is proved . 15 Consequently, when they formally 
joined their sect, or publicly lived in accordance with its tenets and its practices, 
they are presumed to have incurred this juridical infamy, along with the general 
excommunication for heresy. As has been remarked above, this presumption will 
yield to facts; and if any importance attach to the matter of their status in the 
external forum, proof of inculpable or simply culpable ignorance of the penalty 
will show that the censure and the juridical infamy was not incurred . 45 

42 Canon 2314, § 1, n. 1. 

43 For brief history of legislation, and statement of pre-Codc provisions, of. Wernz, Jus 
Dccrclalium, VI, nn. 105-10G, and notes, 

41 Canon 2295. 

45 One application of this may be found in the decision of the Holy Office, Jan. IS, 1928, 
(.4 ..4. S. t XX, pp. 75-70) that non-Catholies may not be plaintiffs in matrimonial causes. Sec 
discussion of this below, p. S1-S5. 

46 Canon 2229, § 3, it. 1. Cf. Bouuaert-Simenon, Matt. Juris Canoniri, n. 1310. 


: 1 

1 

/’ 


The Delict of Heresy 55 

| If a cleric is guilty of this aggravated delict, the Code makes two further pro- 
| visions. The first is referred to in the text quoted above; 

Ob tacitam renuntiationem ab ipso jure admissam, quaelibet officia 
vacant ipso facto et sine ulla declaratione, si clericus. . . . 

4/ a fide catholica publice defecerit. 

I 

I This canon (1SS, §4) is one from the section treating of resignations from eccle¬ 
siastical charges; and the import of this section is that the act of severing con¬ 
nection publicly with the Church is a tacit resignation from any office, benefice or 
position, which resignation is accepted by the Church, without formal notice of 
acceptance being necessary on the part of the Bishop or any other official. In 
| other words, a cleric who joins a non-Catholic sect strips himself, by this very 
t act, of any ecclesiastical position he may previously have held, and no longer 
has any rights or powers deriving from that position. 

Just as the simple heretic incurs further penalties by judicial trial and sen¬ 
tence, so too the cleric who joins a non-Catholic sect may be subjected to judicial 
trial, and incur a final penalty, if the event proves him contumacious in re- 
taming membership in the non-Catholic sect despite the warning and full 
knowledge of his offense which the trial makes certain. The penalty provided 
\ for this case is degradation. 

; ; Degradation is an even severer penalty than the deposition decreed against 
: obdurate heretical clerics in the preceding number of the same canon and see- 
: tion. By deposition, a cleric is deprived permanently of all offices, benefices, dig- 
i nities, pensions and functions in the Church, and becomes incapable of acquiring 
' them in the future; but he is not deprived of clerical privileges, and is not re- 
) duced to the status of a lay person . 47 Degradation includes deposition, and adds 
: further penalties to it. Thus a degraded cleric is not merely deprived of any 
1 place or position, not merely made incapable of acquiring them in the future, 
but likewise is perpetually deprived of the right to wear clerical dress or to claim 
I clerical privileges. He retains the powers conferred upon him by ordination, 
j since nothing can change or remove the character imprinted by the Sacrament 
J of Holy Orders; but although the exercise of Orders would be valid, he is 
j forbidden so to act, and hence any exercise of the power of Orders is illicit . 46 
I Before this severest of all ecclesiastical penalties can be imposed, there must 
I be a fruitless warning, a trial of guilt and a finding both that the offense was 
j committed and that the delinquent cleric is still contumacious. This prosecu- 
1 tion may accompany prosecution of the basic delict of heresy, or may be de- 
j layecl until a vain attempt has been made to secure amendment and recanta- 
] tion by punishing the heresy alone, under the second number of canon 2314, §1 

! —— 

l 47 Canon 2303. Cf. Wernz, Jus Decretaiium, VI, n. 12U. 
j Canon 2305. Cf. Wernz., o.c VI, n. J33. 

1 




57 


CHAPTER FIVE 

HERESY AND ACTS OF CATHOLIC PIETY 

t 

The punishments incurred by heresy have been thus far mentioned only in a i 
general way. The terms “excommunication,” "deposition,” "infamy,” and j 
“degradation” refer to punishments whose nature is unfamiliar to most per- ; 
sons, or is known only in a confused way. It is therefore desirable to review in ; 
more detail the meaning of these terms, particularly as they apply to the heretic. 

All these punishments are privations of spiritual benefits. The delinquent loses 
something he previously possessed. If a heretic, as often happens, entirely 
severs connection with the Church and all things Catholic, he has by his own 
choice cut himself off from Catholic life, and the fact that the Church likewise 
cuts him off will make no practical change in the situation. He has by his own act 
deprived himself of even more than the Church would deprive him of. Other 
heretics, even after their delict, may still wish to continue certain habitual 
Catholic activities. The question therefore arises as to the precise meaning of 
the excommunication and other penalties they have incurred: to what activi¬ 
ties have they still a right? what activities may they continue by tolerance? 
from what activities are they barred ? For the most part, the answer to these ques¬ 
tions involves legislation which is general for all excommunicates, and is not 
peculiar to heretics. It will here be reviewed summarily, with the problem of 
the heretic kept foremost. 

The basic penalty attached to heresy is excommunication, which is de¬ 
fined as: “Censnra qua quis excluditur a communione fidclium cum efiectibus qni 
in canonibus qui sequtmtur enumerantur, quique separari nequeitni.”' The nine 
canons which follow may be roughly divided into two groups, the first of which 
legislates for certain deprivations in the delinquent’s own religious life, and the 
second for certain deprivations in his official ministrations to the religious life 
of others. This distinction offers a convenient method of summarizing the 
legislation, and it will therefore be followed in dividing the matter between this 
and the following chapter. 

********* 

As regards the heretic’s own life of piety and religion, one general observation 
must preface all others, Excommunication is not imposed to prevent or pro¬ 
hibit his personal sanctification. Rather, it is a medicinal penalty, and is decreed 

1 Canon 2257. 

56 


3 The Delict oj Heresy 

% 

;:j by the Church in the express hope and purpose that it will serve as a means of 
1 grace and an occasion of repentance for his sin, and lead to amendment of his 
| life. 2 During the period in which the excommunication is in effect, the heretic 
| is indeed separated from the communion of the faithful; but this must not be 
| understood as meaning that he is cut off from communication with God. He is 
deprived of participation in graces which come through the ministry of the 
Church, but not from those which come directly from the merciful generosity 
| of God. It is indeed the Church’s hope that the heretic, during his enforced sepa- 
| ration from the common religious life of the faithful, will prosecute more in¬ 
ti tently his own private religious life, and so come to sincere repentance and re- 
s gain the state of sanctifying grace. 

1 Hence excommunication does not forbid the heretic to pray as much and as 
j often as he wills; to use in these prayers any formula of words which may appeal 
I to him, or any form of meditation and mental prayer; to practice any works of 
| penance and mortification, or of praise and adoration, or of justice and charity, 
j In a word, the heretic may and should continue his personal life of piety upon 

I the same basis as any other sinner; and in his sincere prayers rests his best 
J human hope of obtaining the grace of repentance. Excommunication deprives 
j him only of certain acts which are social in their character, and which have their 
| meaning and value in that they imply a solidarity with the corresponding acts 
■| of the brotherhood of the faithful. The fact that these acts are forbidden should 
j serve to recall to the heretic's mind that he is in rebellion against the one true 
| Church of God, and this in turn should lead him to consider the extrinsic au- 
| tliority supporting the truth he denied, and so move him to recant. 

5 The following pages review these deprivations, and note how various here- 
\ tics are affected in matters of external piety and religious life. 

j 

j a. Assistance at Divine Offices 

j Divine offices are sacred functions, instituted by Christ or the Church, for the 
\ worship of God, which can be performed only by those having the power of 
\ Orders. 3 included under this term are the various acts of official divine worship. 

: such as the Holy Sacrifice of the Mass, the choral recitation of the canonical 
J hours, liturgical processions, consecrations, and blessings. There are various 
; popular devotions which are not, technically, divine offices; such as the recita- 
: l>on of the Rosary, the following of the Stations of the Cross, morning and even- 
: | ing prayers, etc. Even if these sendees are conducted by a priest, they do not 
i i. thereby become divine offices, since by their nature they may be conducted by 
; j any person, lay or clerical. 4 

; ;i_ 

[ J 

I I ‘ Canon 2215. 

■ j 3 Canon 2256, § 1. 

N 4 Sole, De Delictis, n, 202; Cappelio, De Cetisuris , n. 149. 








58 


The Delict of Heresy 


59 


The Delict of Heresy 

Canon 2259, §1, states that excommunicates are deprived of the right o[ 
assisting at divine offices, but makes no mention ol other devotional exercises. 
Leaving this phrase “caret jure" for later consideration, it may be noted that the 
canon goes on to direct those in charge of the divine offices as to their conduct 
in regard to heretics. It first considers the case in which the heretic seeks merely 
to attend passively, i.e., merely as one of the congregation, In this case, it is not 
necessary that he be expelled, unless he has been characterized as vitandus in a 
sentence of excommunication issuing directly from the Holy Sec, naming him 
personally, and indicating expressly that he must be avoided by all the faithful. 1 * * * 5 * * 8 
The vitandi are few in number, and such cases will rarely occur. 0 Tire other 
heretics, even though they have been subjected to a declaratory or condem¬ 
natory sentence, may be permitted to attend passively. The law however 
gives the celebrant iinplicit permission to cause the expulsion of any heretic 
whose presence would be a scandal. The phrase “non esl neccssc til expellatin ” 
clearly implies that while it is not necessary in every case, it may be done in 
certain cases. However, no occult heretic can be subjected to this expulsion, 
since no one has the right to cause him to observe Iris excommunication in the 
external forum. Even if the celebrant knows that the occult heretic has incurred 
excommunication, he cannot order his expulsion. Hence, it may be stated, in 
general, that those in charge of divine offices are not obliged to prevent here¬ 
tics, ratione censurae, from attending these offices. Any action on the part of the 
clergy will be dictated by the natural law, and will be intended only to prevent 
irreverences or scandals, when these may be anticipated as a result of the here¬ 
tic’s presence. 

The same canon 225S, §2, imposes a different and stricter obligation on those 
in charge of divine offices, if a heretic seeks to participate actively in the cele¬ 
bration of the office. In this case they are required to repel not merely the 
vitandus, but likewise all notorious heretics, whether the notoriety be in law or in 
fact. There is no mention of occult heretics, nor of those whose offense is public 
but not notorious.? There is therefore no obligation, on the basis of this canon, 
to repel delinquents of these types; action need only be taken when there is 
danger of scandal or irreverence. But in all cases in which the delict was no¬ 
torious, the obligation binds those in charge of the office sub gravi. s 


1 Canon 2258. 

6 As to the mode of discontinuing the service, see Cappello, o.c., p. 42, note. Cf. Hyland, 

Excommunication, p. UG-CS. 

7 As to this distinction, see canon 2197 and commentaries thereon. Note also that no one 

can require an occult heretic to observe his excommunication in the external forum, until he 

has been judicially sentenced (and therefore ceases to be occultly excommunicated),—canon 

2232, § 1. 

8 Failure to repel sentenced clerics is punished by an interdict al> ingresstt ecelesiac —canon 
2338, § 3; if the cleric is vitandus, failure to repeal him is punished by an excommunication 
reserved simptieikr to the Holy See,—canon 2338, § 2. These penalisations are incurred only 
by those who fail scienter. 


A 

| 

I 

;3 

| Active participation is defined by the Code in forms that are broadly exten- 
■| sive: “Assistentia . . . quae aliquant seemnjerat participationem in celebrandis 
I drdnis officiis,'' 5 Under this term will be included ail the activities, during a 
| divine office, of priests, deacons, subdeacons, and inferior ministers whether 
i clerical or lay; the chanting or saying of psalms, prayers, etc., in the choral reci- 
I lation of the canonical hours; participation in liturgical processions, consecra- 
3 tions and blessings; singing in the choir at a liturgical service. There is con- 
| troversy among canonists as to whether or no an organist playing with a choir 
j participates actively; 10 and hence a heretical organist may appeal to reflex 
I principles and insist that a doubtful penalty be not assessed against him.” 

.5 

I All these activities, save probably the last, are to be forbidden any heretic 
5j whose delict is notorious. Other heretics may be permitted such participation; 
| although it must be kept in mind that even when positive law is silent, the natural 
1 law binds those in charge of divine offices to take prudent care to avoid the 
j scandal of seeming to rate heresy or apostasy on a par with true faith by per- 
j nutting heretics or apostates the roles which belong to the faithful.' 5 

I When canon 2259 is approached from the viewpoint of the heretic, its in- 
1 terpretation is more difficult. As was stated above, the Church will, in practi- 
% cally every case, tolerate his presence as a witness of divine offices. Does this 
■} mean that he is perfectly free in conscience to avail himself of this toleration ? 
| or is he bound in conscience to recognize his status, and remain away from the 
1 official services of the Catholic Church? 

■a 

| There is no doubt that the ancient discipline of the Church was very strict 
i in this regard. The Fourth Council of Carthage expressly provided that here- 
\ tics might attend only the Mass of the Catechumens, and this canon was among 
;i those quoted by Gratian. 13 When heresy became a new and pressing danger in 
I Europe, the Third Council of the Lateran.in 1179, forbade such attendance. lJ 
\ Even after Martin V, in 1-118, distinguished between the tolerati and the vitandi, 
1 the attendance of an excommunicate at any divine office was deemed a serious 
I offense. 15 

x 

3 


| ,J Canon 2259, § 2. 

| 10 Chelodi. Jus Pocnale, n. 37, favors the view that the organist participates actively; 

• | Augustine, Commentary, VIII, 177, and Noldin, Dc Censuris, n. 39, favor the negative view. 

A decree of (lie Holy Office, Feb. 23, 1820, permits heretics to play the organ when no other 
;} organist can be secured,— Collect, n. 739. 

| 11 Canon 19. 

\ 12 Vermeersch-Creusen, Epitome, III, n. 4G1, ad 1. 

13 C. G7, D. I., dc consecration?.. 

11 Canon 9,—Mansi, XXII, 223. Gregory IX later refers to this canon, and states that he 
i has punished transgressors,—c. 31, X, de praebendis, III, 5. 

\ is Hyland, Excommunication, p. 55. 





GO 


The Delict of Heresy 


The Delict of Heresy 


61 


Change in this discipline came not by law, but by custom, D’Annibale was 
the first to record that confessors rarely instructed tolerali to abstain from at¬ 
tending divine offices, and that excommunicates commonly did not know of an)' 
obligation to remain away. On this basis, he argued that the obligation to ab¬ 
stain from assistance was either non-existent, or else bound only under pain of 
venial sin." 5 Other notable theologians and canonists noted that this teaching 
was at least probable. 12 Thus, in the years just preceding the writing of the 
Code, the duty of tolerated excommunicates to remain away from divine offices 
was seriously questioned. 


This modern doctrine was necessarily familiar to the Commission that wrote 
the Code. Hence the difficult)' of interpreting the ambiguous formula of canon 
2259, § 1 . This states: “Excommiimcattts qiiilibet caret jure assistendi divinis 
oj/iciis.” The phrasing is open to either a strict or a benign interpretation. It 
may be understood to mean that heretics have a duty to stay away, or else 
that they simply lose the right to attend. In the second interpretation, the loss of 
right does not necessarily imply a prohibition against attendance; the ex¬ 
communicate may licitly attend, but has no ground for a claim of unjust treat¬ 
ment if he is refused admission. Commentators are divided as to which of these 
opinions is more consonant with the second section of this canon, and with 
other penal canons. 18 The result is that the duty is at best doubtful, and in 
practice cannot be insisted upon. If a tolerated heretic wishes to attend divine 
offices, such as the Mass, he cannot be told positively and definitely that this 
attendance is a sinful violation of this censure. 18 jjj 

One particular case of some importance is that of a Catholic who commits a 
delict of heresy, and then wishes to know if his status as an excommunicate 
releases him from the obligation of attending Mass on Sundays and holydays. 
The principle is well recognized that no one should profit by his own malice. 
On this basis Michiels holds that the general precept, requiring attendance under 
pain of mortal sin, still applies and binds in conscience; 20 in this opinion he is 
supported by all those commentators who hold that the present canon simply 
deprives the heretic of a right, but does not impose a prohibition. 21 On the 
other hand, Chelodi, 22 Cappello, 28 Noldiri, 21 and Aetnys-Damen 23 hold that the 


16 Summnla Theol. Moral., I, n. 362, not. 19. 

,T Bucceroni, Comment, de Censuris. n. 99; Legn, De Judiciis, III, n, 139;Gemcot, hislitut. 
Theol. Moral., n. 583. 

18 Particularly canon 2275. 

19 Cf. Hyland, Excommunication, pp. 53-OS, where the various opinions and arguments are 
carefully canvassed. Note that all agree that the vilandus is certainly bound to abstain from 
attendance. 

20 Norniae Generates, I, p. 2S7. 

21 Vermecrsch'Creusen, Epitome, III, n. 461; Ayrinhac, Penal Legislation, p. 121. 


1-1 


. |excommunicate is still forbidden to assist at divine offices; and being thus for- 
!bidden, the general precept to attend is superseded by the special precept to 
Islay away. Once again the matter is doubtful, and in practice the heretic cannot 
vibe held to the general obligation, nor judged guilty of mortal sin if he has failed 


•| to attend Mass on days of obligation. 28 

I There is one special divine office which has not been mentioned, but for which 
|special provision is made in the Code. This same canon 2259, §1, specifically 
p provides that every excommunicate still retains the right to be present at the 
|preaching of the Word of God. Nothing could illustrate better the medicinal 
|purpose of the Church's penal legislation than this provision. The church’s 
I mission is to preach the Gospel to every creature, and, like her Founder, to 
jseek especially for the sheep that are lost in sin. Hcncc no matter how grave 
| the guilt of any heretic, he is always permitted to attend sermons, instructions, 
:j missions and conferences, in the hope that the preaching of revealed truth may 
convert him from his errors, and so direct him back to the one true fold of 
Christ.” 


b. Reception of Sacraments 


1 1 Canon 2260, § 1 , states that heretics cannot receive the Sacraments; and if 
{they have been juridically sentenced for their delict, they cannot thereafter 
1 receive the Sacramentals during the period of their excommunication. The 
1 reason is obvious. The Sacraments are the chief means of grace whereby the 
| Church procures and supports the supernatural well-being of her subjects. 
I The heretic who has cut himself off from the Church has not the slightest right 
j to turn to her and expect from her hands these greatest of spiritual favors. His- 
Jtorically, deprivation of the Sacraments has always been the penalty assessed 
I against heretics, from the earliest canons and regulations up to and including 
I the legislation of the Code. 28 


j Jus Poenate, n. 37. 
i 51 De Censuris, n. 149. 

; - J De Censuris, n. 39. 

} » Theol. Mora!., II, 1002. 

\ Except where he neglects to secure absolution from the censure precisely that he may be 
j free from the necessity of obeying this or such other precepts as that of Easter Communion: 
jCappello, o.c., n. 10S. 

j Certain authorities insist that this right cannot be extended so as to give the delinquent 
j permission to attend divine Offices, (where this permission would not otherwise be accorded), 
i even though sermons and instructions are commonly delivered during the course of such 
j offices. Cf. Cocchi, Commentarium , VIII, n. 87; Blat, Commentarium, V, n. S(i. 

{ 28 Cf. c. 59, X, de sevtentia excommuiiicationis, V, 39. NoLe that this penalty was the chief 

j element of minor excommunication, imposed on those who communicated with heretics before 
j the Constitution "Ad Evitanda”. This minor excommunication wasjibrogated by the Con- 
{ stitution "Apostolicae Sedis ". Oct. 12, 18G9, —Pontes Codicis J.C ., n. 552. 

: S 





02 


The Delict of Heresy 


Familiar theological principles indicate that this canon makes the reception 
of sacraments illicit, but not invalid. The validity of the Sacraments depends, 
not upon ecclesiastical law, but upon the presence of proper matter and form, 
confected by a qualified minister. With these elements present, the Sacrament is 
valid, but will be illicit if the further requirements are not met by the minister 
or the recipient of the Sacrament. The present question concerns a heretical 
recipient. • 

This law offers little difficulty in the case of Catholics who have been excom¬ 
municated for the delict of heresy. They are forbidden to receive any Sacrament 
during the period of their excommunication, which is to say, until they have 
received absolution from their censure. If they were to receive any Sacrament, 
they would be guilty of a serious offense against this obligation, which binds not 
merely in the external forum, but also in conscience. 29 Of course this violation of 
the censure is a distinct offense from that of receiving a Sacrament tvhile in the 
state of mortal sin. In other words, even if the heretic regain the state of grace 
by an act of perfect contrition, he is still bound, under pain of sin, to observe his 
censure and to refrain from receiving any Sacrament until he has secured abso¬ 
lution from his excommunication. 

A different and interesting problem arises in connection with heretics who 
have never been Catholics. Theologians have recognized that in certain cases 
priests may wish to administer Sacraments to them, and have discussed the 
liceity of this administration. A brief review of this discussion will be apropos. 

First, it may be noted that definite and familiar provision has been made 
concerning heretics and the Sacrament of Matrimony. 29 When the Church 
grants a dispensation super mixta rvUgione, there can be no question of the 
liceity of the Sacrament conferred upon the non-Catholic party. Again, there 
need be here no discussion of the Sacrament of Baptism, since this is in all cases 
conferred upon one who is, not a heretic, but an infidel or unbaptized person. 31 
Likewise, the Sacraments of Confirmation, Holy Orders and Holy Eucharist are 
not necessary to the non-Catholic's salvation, and hence do not fall within the 
reasoning here reported. 

The case in point is that of a non-Catholic who has lived all his life as a non- 
Catholic, with every appearance of being in entire good faith as regards his 
membership in some sect, or as regards his non-membership in any sect. He is 
baptized, a Christian in belief and profession, and, in every human judgment, a 
good, charitable and moral character. This individual is found by a priest in 
what theologians call extreme spiritual necessity; that is, he is now dying, with 


ss Canon 2232. 

30 Marriage between two heretics, canon 1012, § 2, 1099, § 2; between a heretic and a 
Catholic, 1001-1004. 

11 For discussion of Baptism of such persons, conditionally or absolutely, see King Adminis¬ 
tration of Sacraments to Dying Non-Catholics, pp. 42-48. 


The Delict of Heresy 


63 


judgment and eternity in immediate prospect. Granted human frailty, he prob¬ 
ably has sins to answer for; and with equal probability it may be thought that, 
despite his general good character, he has not been so perfectly contrite as to have 
attained forgiveness. In such a case, many priests wish, out of love for sottls, 
to administer the sacraments of Penance and Extreme Unction. They hold that 
the dying man has all the necessary dispositions required for valid reception 
of the Sacraments, and that therefore his sins will be forgiven, and another 
soul will be added to the court of Heaven. 

There is no difficulty about administering the Sacraments to those who 
manifest, even incompletely, a desire to enter the Communion of the Church, 
and to receive her Sacraments. Even though the dying man lapses into uncon¬ 
sciousness before the arrival of the priest, he may be given absolution and Ex¬ 
treme Unction. In the case of the dying, the Church grants all priests the most 
generous faculties, over every sin and every censure. 32 The smallest indication 
of desire for their exercise will justify the administration of the Sacraments, at 
least sttb conditioned 

The real problem concerns those who are dying without expressing in any way 
a desire to join the Church, or without repudiating in any way their non-Catholic 
life. It may be held that many of these individuals are in subjective good faith, 
and that they have a real desire for salvation, which contains at least implicitly 
a desire for the Sacraments. 31 In ignorance of their actual dispositions, reverence 
for the Sacraments is safeguarded by administering them sub conditionc. The 
objection of scandal can be met and removed by various measures,—secrecy, 
words of explanation, etc. 35 

All this favors the administration of the Sacraments in these cases. As against 
administration, the words of Canon 731, §2, may be quoted: 

Vetitum est sacramenta Ecclesiae ministrare haereticis et schis- 
maticis, etiam bona fide errantibus, eaque petentibus, nisi prius, 
erroribus rejectis, Ecclesiae reconciliati fuerint. 

It would scarcely be possible to find a prohibition more strictly and absolutely 
expressed. The wording of the law is explicit, and covers exactly the cases pro¬ 
posed, save in the one element that the canon is general, whereas the present 
discussion relates to a special case, in which the heretic is dying. And while it 
! is true that canon 882 gives the priest such broad powers, nrgente pcriculo mortis, 


33 Canon SS2. 

“As early as 443, the Council of Orange accepted a mere nod in answer to questions, or 
even the testimony of others, as sufficient indication of repentance. Pope Leo I (4f>2) expressly 
confirmed the acceptability of the testimony of bystanders in regard to the repentance of 
heretics: Demsiiigcr, n. 147. Cf. c. 4-32. C. XXVI, C. 

M Cf. Gury. Casus Conscienliac, casus III. De Virtntibns, I. p. 118. 

35 Cf. LaCroix, Tlicot. Moral, 1. VI, pars II, n. 1S6G; lie would permit a priest to change his 
garb and approach the individual incognito; the practice would seem to be too open to scandal. 


a 





64 


The Delict of Heresy 


65 


that he can he sure of the validity of his absolution if the dying heretic has the 
proper dispositions, the question still remains whether he can act licitly, in view 
of the strict prohibition decreed by canon 731, just cited. 

Turning to decisions of the Holy Office, it is clear that the traditional view 
always required some sign of repentance and of desire to return to the true 
Church . 315 There are however, certain decisions which have been cited in favor 
of the proposed practice. Three of these may be grouped together, in as much 
as the text is practically identical. 3 ’ The case proposed concerned the practice 
of administering Viaticum and Extreme Unction to natives of Canada and 
China who had been baptized, but who had not received sufficient instruction 
for the other Sacraments; these individuals came into danger of death, and the 
question arose as to whether they might receive these Sacraments despite their 
incomplete preparation. The answer was: 

“Non esse administrandum Viaticum. . . . Non esse pariter conferen- 
dum Sacramentum Extremae Unctionis neophyto moribundo quem 
missionarius capacem Baptismi credidit, nisi saltern idem habeat 
aiiquam intentionem recipiendi Sacram Unctionem in heneficium 
animac pro mortis tempore ordinatam.” 

As is evident, these decisions do not precisely relate to the point here in question, 
and simply indicate that the Sacrament of Extreme Unction may be admin¬ 
istered when the subject has "some intention” of receiving its benefits. While 
this formulation is sufficiently generous to cover the case of a God-fearing non- 
Catholic, who implicitly desires anything which will benefit his soul at the hour 
of death , 55 the case in general concerns, not a person who has made no con¬ 
nection with the Church, but neophytes, who have formally adhered to Catholi¬ 
cism. 

Another decision concerned the practice existing at Jerusalem of absolving 
heretics and schismatics when dying, without insisting upon a sign of recon¬ 
ciliation to the Church. The decision was: 

"Usum de quo quaeritur, prout exponitur, esse improbandum; et 
ad mentem: La mente e de acccnare a Mons. Patriarca de Gerusaleme 
che, qualora il monobundo eretico o scismatico avesse da to un qualche 
signo sit cui fondare un ragionevole dubbio che quegli aderisca alia 
santa Chiesa cattolica, in tel caso i preti di quella delegazione dovrano 
seguire le norme dettate da accreditati autori .” 39 


“S.C.S.Off., May 9, 1821 —Collect., n. 757: Aug. 1, 1S55,— CollccL, n. 1116; July S, 1874,— 
Collect., n. 1419; July 20, 1S9S,— Collect., n. 2012; etc. 

31 S.C.S.Off., May 10, 1708,— Collect., n. 256; cited later bv S.C.P.F., Sept. 26, 1821,— 
Collect., n. 76S, and S.C.S.Off., April 10, 1861,— Collect., n. 1213. 

38 Killccr, Extreme Unction, p. 128. 

3 » S.C.S.Off., Jan. 13, ISM—Collect., n. 1246. 


I 

A 

j The Delict of Heresy 

J The plain import of this decision is that administration of Sacraments to here- 
;J tics who remain heretics is prohibited; that before administration, there must 
:| be some sign that they desire to attain membership in the true Church. This text 
should rather discourage than encourage the practice we are now considering. 
j The next decision in point is dated July 20, 1898. It is evidently influenced 
;j by the writings of modern theologians on this point. To the question: 

“An aliquando absolvi possint schismatici materiales, qui in bona 
if fide versantur?" 

14 the Holy Office replied: 

J Cum scandalo nequeat vitari, Negative: praeterquam in mortis 

Ij periculo, et tunc efficaciter remoto scandalo.”® 

;J It is evident that the Holy Office is willing to conceive of cases in which 
fj schismatics can be absolved, remoto scandalo, without the previous reconcilia- 
tion which had hitherto been explicitly required. The omission of this con- 
* dition cannot have been an oversight, and therefore must be taken as a relaxing 

I of the older and sterner discipline. 

S .j The decision of May 26, 1916 must next be considered. One interesting feature 

II of this decision is the fact that it antedates by only a year the issuance of Bene- 
; i diet XIV’s Encyclical Providentissimus Deus, which promulgated the Code 
; I and set the following Pentecost as the date of its going into effect. 11 Moreover, 
:i the date of this decision is only six months preceding the date of the announce- 
i \ ment, ill secret consistory, of the completion of the work of codification, 12 While 

1 it is possible that the decision was rendered with full knowledge that it would be 
| reversed by the Code shortly to go into effect, this possibility is scarcely conso- 
ij nant with the practice of the Holy Office. Hence the proximity of dates is 
I S1 >me argument 13 that the Code does not reverse the Holy Office’s decision, and 
j that the two can be harmonized. Another feature of some importance is the 
■; fact that this decision was never officially published in Rome. It is quoted by 
J Pruemmer 11 and Reuter 15 only from Catholic papers. The absence of publica- 
\ tion in the Acta indicates some limitation of its general application. 

If The question proposed was the licitness of conferring Penance and Extreme 
j Unction on schismatics who were unconscious and in danger of death. The answer 
: j was given in the following terms: 

‘“S.C.S.Off., July 20, 189S,— Collect., n. 2012. 

11 May 19, 1917. 

‘“Nov, 4, 1916; cf. Falco, Inirodnciane alio Studio del Codex Juris Canonici, p. 29. 

11 Augustine, Commentary, IV, 353, notes of a similar argument that it is of little juridical 
I value. 

' *' Manualc Tkeol. Moral., Ilf, p. 223, quoting the Linzcr Thcologisch-Praktischc Quartal- 

■I schrift, L, (1916), 504 sq. 

u Neo-Confcssarius, n. 203, quoting the Koelner Pasloralblalt, 1916, 693 sq. 





66 


The Delict of Heresy 

“Sub conditionc, affirmative, praesertini si ex adjuncts conjicere 
beat eos implicite saltern errores suos rejicere, remoto scandalo, mani- 
festando scilicet astantibus Ecclesiam supponere eos in ultimo mo¬ 
menta ad unitatem rediisse.' 1 

The permission to give Sacraments to those who desire them implicitly, on the 
supposition that they have, during their last unconscious moments, formulated 
a desire to return to the Church, is generous and charitable; and while the 
decision was rendered concerning schismatics, it may fairly be applied to here- 
tics whose condition and good faith is parallel. 40 

There is then this one clear decision of the Holy Office covering almost exactly 
the case here under discussion, and permitting the administration of Sacraments, 
provided scandal is removed. As against it there is the general prohibition of 
canon 731, §2, which forbids the administration of the Sacraments of the Church 
to heretics and schismatics, even though they are in good faith, and even though 
they request them, unless they first reject their errors and are reconciled to the 1 
Church. The Code makes no distinction between the well and the sick, between 
the conscious and the unconscious. Elsewhere in the Code, there is the same con¬ 
scious endeavor to exclude heretics and schismatics. 47 It would seem that a study 
of the Code justifies Kilker’s verdict that from a juridical viewpoint, those out¬ 
side the Church are not suitable recipients of the Sacraments. 45 

Apart from this legal discussion of the problem, moral theologians offer a solid 
and weighty (though conditional) approval of administering the Sacraments in 
the cases in question. D’Annibale recorded his opinion that Extreme Unction 
might be given to a person suddenly stricken with unconsciousness and danger 
of death, even if he had given no sign indicating desire for the Sacrament, when 
it is probable that he would not reject such aid, and particularly where he is 
an uninstructed (rudis) person of good faith, or a person who has never been 
adverse to Catholicity, 40 Kenrick, who wrote with more intimate knowledge 
of conditions in the United States, was stricter; he would extend this permission 
only to those who had shown some leaning toward the Church. 30 Noldin 51 and 
Genicot 57 would allow secret and conditional absolution of a heretic whose good 


46 Kern, Tractatus dc Extrema Vuctione, p. 317 would restrict the application of these de¬ 
cisions to schismatics who share the Catholic faith in these Sacraments,—Orthodox Greek, 
Nestorians, etc. On this basis, only certain High Church Episcopalians, among the familiar 
heretical organizations, could be given the Sacraments. 

i- Cf. "Fidclis" in canons 1161, 11152, §3, 1169; compare canons 11SS and 2250, $ 1; canons 
90G, 925, 1152. In all these “ fidelis ” is dearly restricted to the Catholic faithful. 

,a Extreme Unction, p. 120. 

41 Summtila Theol. Moral., Ill, 317. He quotes as authority a text from St. Augustine 
which, Kilkcr notes (o. c., p. 133), applied to the very different case of a dying catechumen. 

50 Epitome Theol. Moral, p. 413, n. 50, 

11 Theol. Moral., Ill, n. 295. 

” Inslilutiones Theol. Moral., II, 29S; cf. his Casus, p. 42-1, casus 619. 


67 


The Delict of Heresy 

faith made his heresy a purely material delict, and who, though still conscious, 
cannot prudently be further instructed. Tanquerey thinks it would not be 
illicit to absolve dying heretics who cannot now be instructed in the true faith, 
and whose heresy is purely material. 53 

Among more recent writers, Vermeersch-Creusen in their commentary on 
canon 731, §2, itself, introduce a distinction between Catholics in good health 
and those in danger of death. 51 The same distinction is found in Vcrmeersch’s 
Moral Theology. 55 Pmcmmcr would allow the administration of Penance, but 
not of Extreme Unction. 50 King, in his dissertation on this very subject, allows 
the administration of both Sacraments. 57 

The names just cited are not a complete list, but in themselves constitute a 
weighty body of extrinsic authority for any opinion. There exists therefore the 
seeming contradiction between a law which seems clear and definite, and an 
opposite teaching by probctli auctorcs. The solution would seem to lie in the 
fact that law, as law, deals with the regular and ordinary cases. 58 On this basis, 
the Church has insisted that her Sacraments be given only to her own faithful; 
and, mindful of her traditional attitude toward heresy, she imposes on her 
ministers a strict obligation not to administer the Sacraments to others, no 
matter how good their faith, nor how explicitly they request sacramental aid. 50 
Moralists, on the other hand, deal with exceptional cases, and heed particularly 
small distinctions which cannot possibly be provided for in general legislation. 00 
With the familiar doctrine of “extreme spiritual necessity” before them, 04 
they recognize that a great spiritual good can be obtained (probably), and that 


M Brevier Synopsis Theol, Moral, n. 1194. 

61 Epitome, II, n. 10. Kilker {Extreme Unction^ p. 132) criticizes this passage: it wrongly 
implies that canon 731, §2, refers only to administration to those that: are healthy; whereas 
admittedly the canon refers also to Extreme Unction, which is always administered to the 
sick, 

65 Theologia, Afaraiis t III, 195. 

55 Manualc Juris Canonici, III, Dc Sacramenlis, p. 1. 

57 The Administration of the Sacraments to Dying Non-Catholics, p. 7S. 

58 St. Thomas, Ta.-II.ie, q. 90, art. 2, writes “Legislator in cis [legibusj staluendis attendii 
id quod communiter et in pluribus accidit. Si quid auleni ex speciali causa inaliquo i n venial ur, 
quod observantiao staluti repugnet, non intendit talem legislator ad stututi observantiam 
ohligare. In quo tatnen cst discretio adhibenda.” Cf. also Ila-IIae, q. T47, art. 4. 

53 Kenrick {Moral, Theol., Dc Virlutc Religionis, n. 46) records an interesting case: “In foro 
exlcrno omes censentur hacretici qui errorem contra fidem in secta aliqua profitentur. Idco 
severe corrcptus est a Suprcma Inquisitione sacerdos qindam qui hominem a sccta Calviniana 
a censuris absolvit absque facilitate neccssarta, practex tarts quod ‘cum ignarus hacrcsum cl 
errorum Cal vim cssct, non posset, dici haerticus formalis.’ ‘Ipsius opinio potius me La physical 
quam vera in S. Officio non est reccpta'. ” Considering only the question of subjective good 
faith one may question the dictum that the good faith and consequent purely material sin of 
heresy is “potius metaphysica quam vera” in many cases today. 

“Quod non est ficitum lege, ncressitas facit licit urn",—c. 3, dc regulis juris, V, 41. 

61 Noldin, Dc Praeccplis, II, tin. 7.5-78. According to this moral principle, all men .are bound 
to assist a neighbor in extreme spiritual necessity, even though this assistance involves risk of 
life itself. 







68 


The Delict oj Heresy 


small evils are present only indirectly and by tolerance,—the administering of 
Sacraments sub conditions, some minimum of scandal, and technical violation 
of the exact letter of the law. Judging the relative proportions of these con¬ 
siderations, they conclude that it would be unreasonable to interpret the law 
with absolute rigor; and since the Church is never unreasonable, they con¬ 
clude that these cases are not contemplated by the law . 62 This is the moralist’s 
equivalent of the cpikeia of canonists, and serves to indicate that the applica¬ 
tion of epikeia to this canon has a prudent basis , 6 ' 1 

Canon 731, §2, will therefore be understood as imposing a strict warning 
against any lax concessions to heretics. But as regards exceptional and extreme 
cases, Kilker’s verdict may be adopted: 

"A priest who gives Extreme Unction [or Penance] to dying here¬ 
tics has enough of extrinsic probability on his side to save him from 
any scruples of conscience or criticism by his superiors. Again, a priest 
who does not anoint [or absolve] in these cases cannot be impugned for 
a lack of love toward souls. He has in support of his refusal argu¬ 
ments whose intrinsic worth are [r/c] much greater than those which 
prompt the contrary mode of procedure .” 04 

********* 

The Code defines Sacramcntals as: “ Res aul acl'wnes qitibus Ecclesia in aliquant 
Sacramentorum imitationem, uti solet, ad oblinendos, ex sua impelratione, ejjcctus 
praesertim spirituales Among Sacramcntals are included certain religious 
articles which have been blessed,—holy water, candles, etc.,—sometimes called 
permanent Sacramentals because of the durability of the articles themselves; and 
certain rites, sometimes called transient Sacramentals, since the spiritual benefit 
is connected with an action . 66 

Cmica states that prior to the Code there was no explicit legislation for¬ 
bidding heretics or other excommunicates the reception of Sacramentals . 67 It 
would seem that this omission is explained by the fact that it was deemed 


65 Reuter, Neo-Confessartus, p. 203, suggests that canon 731, 2, is the official teaching of the 
Church, whereas the decision of the Holy Office is what "Ecclesia, pia Mater, non-official iter 
concedat." This distinction of official and unofficial is rather unhappy. It suggests that there 
exists outside the law an esoteric discipline which is available only to the initiated, while 
others remain bound by the strict letter of ordinary legislation. 

® "Epikeia dicit earn legis interpret at ioncm qua, contra verba etiam clara iegis, sed secundum 
mentem legislatoris, quidam casus e legis dispositione prudenter eximitur”,—Vermecrsch- 
Creusen, Epitome, I, n. 97. 

,<M Extreme Unction, p. 135. 

“ Canon 1144, 

M Cappello, De Sacramcnlis, I, n. 113; Paschang,, Sacramentals, p. 10. 

67 Modificcliones in Tractalu de Ccnsuris, p. 93. 


The Delict oj Heresy 69 

| 

i unnecessary, in view of the strict attitude of the Church toward these delin- 
;i quents. 66 

'j The chief legislation of the Code, as regards those who may receive Sacra- 

% mentals, is found in three canons: 

,3 

Benedictiones, imprimis impertiendae catholicis, dari quoque 
I possunt catechumensis, imo, nisi obstet Ecclesiac prohibitio, etiam 
| acatholicis ad obtinendum fidei lumen vel, una cum illo, corporis sani- 
tatem . 66 

| Exorcismi a legitimis ministris fieri possunt non solum in fideles et 

catechumenos, sed etiam in acatholicos vel excommunicatos. 71 ’ 

! Non potest excommunicatus . . . recipere . . . post sententiam dec- 

laratoriam vel c.ondcmnatoriam . . . Sacrcmcntalia . 71 

S The effect of this legislation will be best understood by distinguishing various 
l types of heretics. 

j First, the Catholic who has committed a simple delict of heresy, or who even 
1 has joined a non-Catholic sect, but who has not been sentenced judicially for his 
j delict, is not forbidden by canon 2200, §1, to receive or use Sacramentals. As will 
j appear below, the use of permanent Sacramentals,—such as blessed water, 
■;) candles, rosaries, etc.,—is probably not forbidden to even the sentenced hcrc- 
i tic; a fortiori, the simple heretic may continue to possess and use these articles, 

; subject to the restriction that he cannot now gain the indulgences which are 
i commonly attached to their use . 72 As to blessings, canon 1149 states that they 
j are intended primarily for Catholics, that is, the faithful; but the same canon 
i adds that they may be given to non-Catholics for the purpose of obtaining the 
f light of faith and, secondarily, health of body. Since the Catholic who has 
i fallen into heresy, and the baptized non-Catholic are presumed 73 to be equally 
; guilty of their heretical depravity, it would seem that there is no reason to 
; deny to the former what is allowed to the latter. 

j Canon 1149 restricts the giving of blessings to non-Catholics by the clause 
! “nisi obstet Ecclesiae prohibitio .” Such prohibitions exist in regard to sentenced 
■} excommunicates ; 74 delinquents who have been personally interdicted ; 75 those 
j who, scienter, have contracted a mixed marriage without obtaining the required 
j dispensation ; 76 those who have been sentenced with a vindictive penalty of 


,s Hyland, Excommunication, p. 78. 
a Canon 1149. 

76 Canon 1152. 

71 Canon 22G0, §1. 
r ‘ Canon 2262, §1. 

77 Canon 2200, §2. 

7 * Canon 2260, §1. 

!i Canon 2275, §2. 

71 Canon. 2375. 




70 


The Delict oj Heresy 


71 


The Delict oj Heresy 

privaiio Sacramentalium 77 None of these prohibitions attaches to the simple 
heretic as such. He does however incur an irregularity cx delicto, which dis¬ 
qualifies him for the reception of Orders, and hence of the Sacranrentals given in 
the various Ordinations. 78 

Baptized non-Catholics, as was just said, are presumed in the external forum 
to be responsible for their heresy, and hence to be in the same condition as the 
Catholic who lapses into heresy. However, canon 1149 permits them to 
receive blessings, save where the Church has interposed a prohibition. A de¬ 
cision of the Sacred Congregation of Rites has indicated the extension of the 
term "benedictiones," as used in this canon; and declared that it includes the 
bestowing of such public Sacramentals as the imposition of ashes, the distribu¬ 
tion of palms, etc. 73 This decision was rendered in response to a question con¬ 
cerning catechumens. Hence Blat 50 and Noldin 81 restrict its application to 
catechumens alone. Others, such as Augustine, 82 Ayrinhac, 83 and Vermeersch- 
Creusen, 84 understand it in a broader sense, as indicating the scope of the canon 
in regard to non-Catholics in general, whether or no they have expressed any in¬ 
tention of joining the Church. Hence they state that these public Sacramentals 
may be given to non-Catholics in general. 

The Holy Office has frequently insisted that Catholic ministers take great 
care in the matter of giving Sacramentals to non-Catholics. There is, first, the 
danger that the recipients will ignorant of their nature and purpose, and hence 
receive and use them superstitiously. 85 Secondly, there is the danger that in 
giving Sacramentals to non-Catholics, scandal might be given, since this action 
would seem to be an approval of the non-Catholic's religious status. 66 The duty 
to avoid these dangers, indicated by the decisions of the Holy Office, is a matter 
of natural law, and hence applies irrespective of any positive legislation which 
permits the giving to the Sacramentals to the non-Catholic. 

The third type of heretic is the sentenced heretic,—a delinquent whose delict 
has been judicially proved and made the basis of a declaratory or condemnatory 
sentence. Canon 2201 states simply that he is forbidden to receive Sacramentals 

Pre-Code authorities made a distinction between the reception and use of 


77 Canon 2291, n. 0. ! 

78 Canon 9S5, n. 1. Cf. Noldin, Dc Sacramcntis, «. ‘150. j 

73 March S, 1919,— A.AS., XI, 144. 1 

80 Com men tar ium, III, 724. 

81 Dc Sacramcnlis, n. 46. j 

Commentary, IV, 507. 

M Penal Legislation, n. 342. 

81 Epitome, II, 4G7. \ 

» S.C.S.OiT., Dec. 11, 1749,— Coiled., 11 . 374; Aug. 11, I7AS,— Collect., n. 4GS; cf. II Council ; 
of Baltimore, n. 350. 

86 S.C.K.Off., June 22, 1859,— Collect., n. 117G. j 


Sacramentals. 87 Certain Sacramentals were received; as, for example, the 
blessing accorded women after childbirth; the recipient is passive, and the Sacra¬ 
mental consists in the actions and words of the priest. Other Sacramentals were 
used; the permanent Sacramentals, like rosaries, candles, etc. Since the Code 
uses only the word " recipere and since this penal law, as a res odiosa, is subject 
to strict interpretation, it would seem probable that even a sentenced heretic 
may use Sacramentals, although he may not receive them. 68 

There is one Sacramental which may be received both validly and licitly lay any 
heretic, namely, exorcism. This blessing, designed to drive forth evil spirits 
who possess the person, may be accorded, under the usual conditions, to any 
person, whether the person be infidel, catechumen, heretic-or excommunicate. 
The Code makes no distinction in regard to the last group; and hence the exor¬ 
cism may be imparted to the vitandi as well as the toleraii, 


c. Participation in the Common Suffrages oj the Church 

The common suffrages of the Church are the spiritual aids by which members 
of the Church assist one another, either to atone for temporal punishments due 
to sin ( per satisjactionem), or to obtain, directly or indirectly, spiritual benefits 
(per impetraiionem). In the terminology of pre-Code authors, “common suf¬ 
frages” was the generic term for all the spiritual aids which come from the treas¬ 
ury of the Church and from the prayers, good works and Masses offered in the 
name of the Church. Canon 2262, §1, enumerates separately “indulgences, 
suffrages and public prayers.” Indulgences are specifically defined in canon 911, 
as; 

Remissio coram Deo poenac temporalis debitae pro peccatis, ad 
culpam quod altinct jam deletis, quam ecclesiastica auctoritas ex 
thesauro Ecclesiae concedit pro vivis per modum absolutionis, pro 
defunctis per modum suffragii. 

The distinction between suffrages and public prayers is not clearly indicated 
in the Code or by commentators. 83 In a general way, the term “suffrages” seems 
to indicate prayers and works of satisfaction, while “public prayers” seems 
to indicate impetration. 30 In any case, canon 2202, §1, is intended to in¬ 
clude all the effects of prayer and good works offered in the name of the Church; 
and the provision of this canon is: 

37 Ballerini, Opus Thcol. Moral., VII, n. 396; Alphonstis, Theol . Moral., VII, n. 174. 

83 So Hyland, Excommunication, p. 79: contra, Augustine, Commentary, VIII, p. ISO; Noldin, 
Dc Censuris, n. 40; Ayrinhac, Penal Legislation, p. 122. 

69 Cf. Vermcersch-Creuscn, Epitome, III, n. 464. 

00 Augustine, Commentary, VIII, p. 184. Cf. Cappello, De Censuris, n. 156; Sole, Dc Delictis, 
n. 222. 



72 


The Delict of Heresy 


73 


The Delict of Heresy 

§1. Excommunicatus non fit particeps indulgentiarum, suffragiorum, 
publicarum Ecclesiae precum; 

§2. Nonprohibenturtamen: 

1. Fideles privatim pro eo orare; 

2. Sacerodotes Missam privatim ac remoto scandao pro eo appli- 
care; sed si sit vitandus, pro ejus conversione tantum. 

As has been stated, a heretic is not deprived of access to God. He can and 
he should pray for himself in the same manner as any sinner. 111 Likewise, the 
Church explicitly provides that the faithful may pray for him in private, for 
his conversion, and for any legitimate grace or favor. 92 Moreover, this canon 
terminates a pre-Code controversy as to whether or no a priest can say Mass for 
a heretic. 95 Under the present law, a heretic is excluded from the general fruits 
of the Mass, since they are excluded from the common suffrages. From their 
very nature the most special fruits are reserved to the celebrant. This leaves 
the special or ministerial fruits, which can be applied according to the intention 
of the celebrant. These may now, without question, be offered for the heretic, 
and for any legitimate intention of his; always provided that there is no scandal, 
and that there be no public announcement of this application. The only re¬ 
striction is in the case of a vitandus; here the Church will only allow Mass to be 
said for his conversion. 

Returning to the consideration of public prayers, canon 22G2, § 1 , states that 
heretics are deprived of all participation in them. This law is somewhat more 
rigorous than the teaching of approved pre-Code authorities. Excommunicates 
were deprived of this participation under the law of the Decretals, 51 but after 
the Constitution Ad Evitanda, question arose as to the status of the tolerati; and 
common opinion held that at least the latter could be publicly prayed for. 95 The 
Code, while conceding full permission for private prayers, has definitely over¬ 
ruled this pre-Code doctrine, and excluded all excommunicates, whether vitandi 
or tolerati , from such prayers. Hence it would be illicit for prayers to be publicly 
offered in the Church that any heretic might recover from sickness, or even be 
converted to the true faith. 96 

One special case concerns the offering of prayers and Masses for deceased 
heretics. This should not be done for those who died obdurate and in manifest 
bad faith; for this would be to pray for a lost soul, and would imply the heretical 


si He cannot of course obtain the indulgences attached to certain formulae;—Canon 2202, 
§1, quoted above. 

s! Pighi, Censurae, n. 21, b. This permission extends even to the vitandi. 

91 Gasparri, De Eucharistia , I, n. 483. 

51 C. 8, X, de haerelicis, V, 7. 

ss Alphonsus, Then!.. Moral, VII, n. 104; Wernz, Jus Decretaliitm, VI, n. 188. 

56 Pighi, Censurae, n. 22, b. 


i'-l 
!') 

;; belief that God’s judgment can be reversed. But where this condition does not 
ij obtain, prayers and Masses can be offered on the same basis as for the living. 
: | Thus there may be such cases as the following. If the heretic was reconciled to 
:j the Church, he became again one of the faithful, for whom prayers and Masses 
i may be offered publicly. If he was accorded Christian burial, either because 
:'j his delict was occult, or because before death he made some sign of repentance, 
f the presumption of his having re-entered the communion of the faithful will 
again permit a public Mass. 97 If however he died while still under declaratory 
i sentence, the Mass could be said only privately, and in such manner as to give 
; no scandal. Finally, if he died as a vitandus, there is controversy as to whether 
j Mass may be said at all. Augustine holds that canon 2262, §2, n. 2 permits 
i Mass only for his conversion, and that Mass for this intention is meaningless 
1 when the vitandus is dead; hence no Mass may he said. 08 Pighi agrees with this 
j doctrine, but cautiously adds “saltern pnblice Hyland argues that penal law 
must be interpreted strictly; and since the canon contemplates only the living 
;j vitandus, its prohibitions should not extend to a different case, that of a dead 
j vitandus; therefore Mass may be offered, privately and without scandal. 109 In 
; practice however, it would seem clear that a heretic whose offense was so serious 
j as to merit his condemnation as vitandus, and who persevered until death under 
this censure, must be considered, in any prudent judgment, an obdurate sinner. 
On this basis, if no other, Mass should not be said for him. 

} d. Ecclesiastical Burial 

:;?■ The religious life of the individual may properly be considered as extending 
1 beyond his death, and to include the final disposition of his body. Ecclesiastical 
■j burial is the last pledge of communion w r ith the Church, and as such, is highly 
] prized by the faithful, and properly denied to those who do not belong to the 
< communion of the Church. Deprivation of ecclesiastical burial is one of the 
j ancient penalties inflicted upon heretics and other excommunicates. 101 Con- 
j versely, the intrusion into a Catholic cemetery of the body of one who was not 
j a member of the Church, was considered a sacrilege, and the profanation was 
i removed only by exhuming the body and burying it elsewhere. 102 The seriousness 
j of the offense committed by those who violate this law is to be seen in the legis- 


■ s > Cappello, De Ccnsuris, n. 15G. 

9 * Commentary, VIII, n. ISO, 

\ 87 Censurae, n. 22, c. 

> m Excommunication, p. 122. 

101 C. I, C. XXIV, q. 2; in which arc repeated the familiar words of Pope Leo I, (440-461), 
i "Quibus non communicavimus vivis, non communicemus defunetis." 

it! Q i2, X, de sepult.. Ill, 28; in the Code, canon 1242 provides for the exhumation of the 
' body of a vitandus. 




74 The Delict of Heresy 

lation which has obtained from the early centuries, and which is retained in the 
Code. 113 

The general principle governing ecclesiastical burial is generously conceived: 
no one is to be refused such burial unless he be expressly denied it by law. 10 ' This 
burial comprises the transfer of the body to the Church, funeral services over 
it in the Church, and burial in a place legitimately constituted for the bodies 
of the faithful departed. 105 

Canon 1240 gives a taxative list of those who are denied these final honors. 
Three headings concern heretics: 

1. Notorii apostate a Christiana fide, aut sectae haereticae vel schis- 
maticae aut sectae massonicae aliisve ejusdem generis societatibus 
notorie addicti; 

2. Excommunicati vel interdicti post sententiam condemnatoriam 
vel declaratoriam; 

6. Alii peccatores publici et manifesti. 

Thus, all heretics who are members (notoriously) of a non-Catholic sect or 
condemned society, arc denied ecclesiastical burial under section one; all the 
vitandi and all sentenced tolerati under section two; all whose final unrepentant 
death is publicly known and manifest, under section six. This leaves unmen¬ 
tioned a considerable number of heretics, who therefore cannot be denied ec¬ 
clesiastical burial, if it is requested; viz., all occult heretics who, after their 
delict, continued to live in such a way as not to be considered public sinners. 

It must be noted, moreover, that canon 1240 does not exclude these groups 
absolutely, but only conditionally: “Ecclcsiaslica sepiiltura privantv.r, nisi ante 
mortem aliqua dederint poenitenliae signa.” If they did give some sign of re¬ 
pentance before death, they are not to be denied ecclesiastical burial. The 
clearest sign of repentance would be the request for the presence of a priest; 
but other signs would be entirely satisfactory,—words of sorrow and repentance, 
acts of faith and contrition, and,—if the delinquent had lost the use of speech, 
nods, movements of the hands or eyes in response to suggestions of repentance, 
or general acts of piety, such as kissing a crucifix, etc. 

Even more than this, the Church provides that where there are signs of 
repentance which are only doubtful, the case is to be referred, if time permits, 
to the Ordinary; and if on investigation, it is found that the sign might indicate 
repentance, even doubtfully, the Ordinary is to permit ecclesiastical burial, 

ill c. S, de priv., V, 7, in Sexto; Constitution "Apostoticae Setlis”, VI, n. 2,— Fontes Codicts 
J.C., n. 552. The present law is stated in canon 2339. 

101 Canon 1239, §2, n. 2. 

105 Canon 1204. 


ij The Delict of Heresy 75 

'■It 

;! under any conditions of privacy and lack of pomp which may be required to 
j avoid scandal. 106 

| Difficulties in regard to burial will ordinarily arise where the religious status 
:ij of the dead person is different from that of his surviving relat ives; commonly this 
'! is due to a previous mixed marriage. The question therefore often comes in the 
: form of a request that a heretical spouse be interred in the same plot as a Catholic 
■\ spouse who had previously died. The sentiment which demands that those 
J who have been partners in life should not be separated in death, is a natural 
j and strong one, and deserves respectful consideration. The Church has tolerated 
I the practice of having a common burial lot for such families, in which the graves of 
s the Catholics are blessed individually, while those of the non-Cathoiics remain 
j unconsecrated. 107 The reply of the Holy Office, August 10, 1787, indicates that a 
j very grave reason i.e., the inability to resist the requirements of civil law, will 
1 permit the toleration of a burial of a heretic even in Catholic and consecrated 
j cemeteries. However, this toleration would seem possible only in extreme 
cases; and the other solution of providing unblessed graves for heretics is cer- 
tainly preferable, granted that the Church has, by granting a dispensation, 
conceded not merely the validity, but likewise the liceity of the previous mar- 
i riage. 10 ® 

■i - 

■ 1 106 Vermcersch-Crensen, Epitome, II, n. 049. Cl. S.C.S.OIT., Sept. 19, IS77,— Colled, n, IIS.' 1 , 

1 107 S.C.S.Off., Aug. 10, 17S7,— Collect, n. 549; April 13, ISM—Collect, n. 1089; March 30, 

■j 1859 —Culled, n. 1173; Feb. 12, 1S62,— Colled, n. 1227; the special toleration of burial “in 
sepucliris gentililiis" ,— Colled. 1, p. Oil, not. 1. 

I 108 This reasoning applies to heretics who have never been Catholics, in whose case there is 
: reason to think that good faith existed. If the dead person were an ex-Catholir, there is less 
1 reason to think that this excuse existed, and more reason to apply the penal law in all iLs rigor. 





CHAPTER SIX 

HERSEY AND OFFICIAL STATUS AND ACTIONS 

The last chapter treated of the effects of heresy upon what was called, in 
general terms, the religious or pious life of the delinquent. In the same way, 
the present chapter treats of the effects of heresy upon what is called, again in 
general terminology, official status and actions. In the last chapter, the heretic 
was envisaged as entering, or seeking to enter, into activities which have to do 
with personal sanctification and devotion, and it was noted to what extent his 
excommunication debarred him from doing what other Catholics do in caring 
for their spiritual welfare. In this chapter he is envisaged as engaging or seek¬ 
ing to engage in activities which minister to the spiritual welfare of others in 
some official way. He is occupying, or seeking to occupy, a place in the Church’s 
organized life, with Catholics depending upon his actions, directly or indirectly, 
for certain religious benefits. 

In general, it may be said that a heretic is guilty of sin whenever he acts in 
an official capacity (in the sense of “official” just given); it is manifestly im¬ 
proper for one who has been guilty of the gravest of sins against the Church 
as an authoritative society, and who has thereby incurred excommunication and 
loss of membership in the general communion of that society, to act thereafter 
as one of the society’s officers, and to administer officially to the faithful mem¬ 
bers of that society. This reasoning applies to the occult heretic, whose con¬ 
science is burdened with responsibility for his delict, even though others know 
nothing of its commission. When however his delict is judicially ascertained 
and declared, the Church provides in general that he may not act and if he 
attempts to do so, makes his acts invalid. Finally, as a supreme vindictive 
penalty, when all other efforts to break his contumacy have failed, she not 
merely makes his acts invalid, but removes him from the office itself, and ap¬ 
points another in his stead. 1 This progression, illicity, invalidity, removal from 
office, is her general plan of successive punishment. With this in mind, and 
making necessary exceptions, it will be easy to understand and remember the 
provisions of the law in regard to various activities. 

a. The Administration of Sacraments and Sacramentals 

There may be unfortunate cases in which the delict of heresy is committed by 
a cleric. In such cases, according to canon 22G1, the excommunication incurred 

1 The delict of joining a non-Catholic sect is an automatic resignation of any benefice, etc., 
when committed by a cleric. Tins penalty is immediately applied, and not reserved for ad¬ 
vanced contumacy. 


The Delict of Heresy 77 

3 

as a consequence involves a prohibition to confect or administer Sacraments 
f:| or Sacramentals. 

j In this connection, two preliminary points must be noted. First, if a cleric 
| is in the state of mortal sin, he commits a new sin of sacrilegious irreverence each 
time that he says Mass or administers a Sacrament. 2 This is a law of the internal 
? forum, and makes these acts illicit because of his subjective dispositions. This 
I subjective law has its origin and administration in moral theology, and not in 
| canon law. This moral law applies quite independently of any prohibition of the 
j external forum. It may exist where full permission is accorded In the external 
| forum, or not exist where external law interposes a prohibition. In the following 
| pages disregard entirely the moral worthiness of the person, and consider only 
)s his relation with laws governing the external forum. 

1 Secondly, this section deals only with the licit administration of the Sacra- 
1 ments, prescinding entirely from questions regarding their validity except where 
:i (as in the case of Penance), validity depends upon jurisdiction in the external 
j forum. A Mass said, or a Confirmation or Ordination conferred by even a 
; vitandus heretic will be valid if he had the proper power of Orders, and the 
j requisite matter, form and intention, in confecting the Sacrament. The legis- 
j lation we are about to record does not make the confection of these Sacra - 
1 ments invalid, but does make it illicit. 

j This much stated,—the propriety of excluding heretics from the administration 
j of Sacraments and Sacramentals has always been so clear that the origins of 
' j the present law can be traced to the earliest legislation of the Church. 1 In the 
,J Corpus Juris, heretics and excommunicates were forbidden to celebrate Mass, 
• and in general to perform any sacred function whatever. 4 The penalty for vio- 
j lation of this prohibition was an irregularity, sometimes accompanied by vin- 
1 dictive penalties of privation of benefice and deposition. 1 The Church likewise 
J, imposed an obligation on her faithful to avoid receiving Sacraments from ex- 
] communicated ministers. 11 

1 In the Code, canon 22GI, §1, prohibits heretical clerics the licit confection and 
' administration of Sacraments and Sacramentals, and in so doing continues the 
] age-old discipline of the Church. The law is not, however, absolute and un- 


5 Nolditi, Theol, Moral, III, De Sacramentis, n. 28. 

1 3 See Chapter One above. 

I * Cf. X, de clerico excommunicato , V, 27. C. 1 is the 29th. canon of the Apostolic canons 
l ( ca. 400); c. 2 is canon 6of the Council of Antioch (341), which had likewise been quoted by 
.i Oratian, c. 6, C. XL, 2. 3. 

6 C. 3,4;6,10, X, de clerico excommunicato , V, 27. 

°C. 9, X, de hacreticis, V.,7. The penalty was minor excommunication. After the consti- 
j tution ,l Ad Evilanda' , 1 this minor excommunication was incurred only when a Sacrament was 
; illicitly received from a vitandus. Minor Excommunication was abolished by the Constitution 
i li Apostnlicae Sedis”; but this Constitution and the Code (canon 2372) penalize the reception 
j of Holy Orders from a heretic. 


76 







78 


The Delict of Heresy jj 

conditional. Certain exceptions are immediately made. Before noting these, .g 
it is well to recall again canon 2232, §1, rvhich allows occult delinquents to act j 
in the external forum as if they were not censured, to the extent required for 
the preservation of their good name. This canon may have ready application 
in the case of a heretical cleric whose offense was occult. The refusal to say i 
Mass or confer Sacraments could scarcely be explained, in certain circumstances, j 
except in terms of his being conscious of guilt. Hence, as far as the external j 
forum is concerned, an occult heretic may appeal to this canon 2232, §1, as a j 

release from the prohibition of canon 2201, §1. j 

In addition to this, the second and third sections of canon 2201 provide for =: 
the delinquent's administration of Sacraments in certain special cases. This y 
provision is not intended as a favor to the delinquent himself, but rather as a j 
means of making the Sacraments more available to the faithful, especially in y 
urgent cases. These two sections provide: i 

2. Fideles, salvo praescripto §3, possunt ex qualibet justa causa j 
ab excommunicato Sacramenta et Sacramentalia petere, maxi- 

me si alii ministri desint, et tunc excommunicatus requisitus potest :■ 
eaderri ministrare neque ulla tenetur obligatione causam a requirentc 
percontandi. s 

3. Scd ab excommunicatis vitandis necnon ab aliis excommunica- ■. 

tis postquam intercessit sententia condemnatoria aut declarato- f 

ria, fideles in solo mortis periculo possunt petere turn absolutionem j 

sacramcntalem ad normam can. 882, 2252, turn etiam, si aln desint 
minstri, cetera Sacramenta et Sacramentalia. 

These two sections are addressed to the faithful, and regulate their inter¬ 
course with priests known to be excommunicated for some delict. Ex hypolhesi, 
an occult heretical minister is not concerned; but obviously, what is true of 
public excommunicates is even more true of occult delinquents, 9 lie provisions 
distinguish between those priests who have not and those who have received 
judicial sentences, and between the faithful whose case is urgent and those who 
are in ordinary need of the Sacraments. Hence: 

1. When a priest has been sentenced with either a declaratory or condem¬ 
natory sentence of excommunication (whether he be vitandus or toleratus), the 
faithful may only seek Sacraments from his hand when they, the recipients, arc 
in clanger of death. Canons 882 and 2252 give all priests, of whatever good or 
bad standing, faculties for Penance whenever one of the faithful is in danger of 
death; and these faculties are of the broadest possible extension, so that the 
priest can absolve from every sin and every censure, with no exceptions what¬ 
soever. Canon 2261 is the logical complement of this legislation, in giving the 
faithful the right to seek the ministrations of priests so empowered. The whole 
is intended to make easier the receptions of Sacraments by those who, in dying, 
need them most. The familiar fact may be noted that the Code uses the term 


The Delict of Heresy 


79 


"in periculo mortis, ” and not the term "in articulo mortis," w'hich might have a 
stricter interpretation , 7 Moreover,.it is to be noted that the dying person may 
choose to receive absolution from an excommunicated priest, even when priests 
in good standing are present or available; but that the excommunicated priest 
can administer Viaticum, Extreme Unction or Matrimony, and such Sacra- 
inentals as the Last Blessing, only in the absence of approved priests. 

2. When the priest or other cleric is excommunicated, but has not received 
either a declaratory or condemnatory sentence, the faithful are permitted to 
ask and receive from him any Sacrament or Sacramental, especially if other 
ministers are absent. 8 In these circumstances the said minister is free to ad¬ 
minister to the faithful, and does not thereby violate the censure of which 
he is conscious. The faithful are required to have a just cause for their request, 
but canonists do not require that it be a serious (gravis) cause; the earlier con¬ 
ferring of Baptism, the dispelling of doubt concerning the gravity of a sin and 
the state of conscience, the desire for greater purity of soul when approaching 
the Holy Table, or the wish to communicate more frequently, have been recog¬ 
nized as just causes for requesting Sacraments even from priests known to be 
under simple censure. 5 Meanwhile the minister is not required to investigate 
the reasons impelling the faithful to approach him, nor to verify the justice 
of their reasons. On being asked to administer a Sacrament, he is immediately 
free (ratione censurae) to do so. Even more, canonists do not require him to 
wait for an explicit request. Any implicit or reasonably presumed petition will 
be sufficient. Hence, when no other minister is available, a priest who is con¬ 
sciously guilty of a delict of heresy may go to the Church, and show himseif 
as ready to hear Confessions at the regular hours, to distribute Communion 
and celebrate Mass when the faithful gather for these purposes. 10 

A special word may be said about the Sacrament of Matrimony. The min¬ 
isters of this Sacrament are the spouses themselves. The general provision by 
the Church is contained in canons 1060 to 1066 inclusive. Canons 2260 and 2261 
offer an interesting study, in as much as these latter canons apply to the recep¬ 
tion and administration of the Sacrament of Matrimony. The heretical party is 
prohibited by these canons both to receive and to administer the Sacra.mcnt, 
while the Catholic party is administering the Sacrament to a person who is (by 
juridical presumption of the external forum) excommunicated, and at the same 
time receiving the Sacrament from this excommunicate. In most cases, the 
heretical party is in good faith, and does not know of canons 2260 and 2201. 

7 Cappello, De Sacramcntis, IT, n. 40S; Hyland, Rxcommuniealinn, p. 04. On the older dis¬ 
tinction of these terms, sec Carr, Constitution “Aposlolicae Scilis’ 1 Explained, pp. 02-66. 

8 This clause implies that the faithful have a certain duty in charity not to occasion a sin of 
sacrilege when a priest is in the state of mortal sin. 

D Cocchi, Commcnturium, VIII, n. 87; Vermeersch-Creusen, Epitome , III, n. 4G3. 

10 Vcrmccrseh-Crcuscn, /. c,; Hyland, Excommunication, p. 92. 



80 


The Delict of Heresy 

Moreover, where a dispensation has been obtained, it shows the Church’s 
toleration of the situation, and exempts the particular marriage from the general 
principles here stated. But even where the ordinary good faith does not exist, 
i.e., where one of the parties is a Catholic in good standing, and the other is 
an ex-Catholic who is contumaciously addicted to heresy or apostasy, the 
Church will, for sufficient cause, still grant the dispensation for the sake of the 
innocent party. The explanation may be offered by recalling the general theory 
of contracts." An innocent party may, for a just and sufficient reason, enter 
into a contract even when he knows that the other party will thereby sin. This 
will be eminently true of the innocent party to such a marriage, since this con¬ 
tract will in such cases bring more of value and utility than most ordinary 
business affairs,—at least in the estimation of the innocent spouse. In any case, 
marriages with heretics will be arranged and contracted in the light of the 
legislation specially provided for these cases.’ 2 

A second aspect of this legislation arises when a priest has been guilty of a 
delict of heresy, and then is requested to assist at a marriage. The right to 
assist at marriages is very like the power of jurisdiction. It is obtained by 
virtue of an office, and may be delegated to others. It is therefore regulated by 
canon 1095, §1, on the same principle that will later be seen regulating acts of 
jurisdiction; viz., the right to assist at marriages obtains until a declaratory or 
condemnatory sentence has been issued. This means that a priest who otherwise 
has a right to assist at marriages can continue to do so validly even after a 
delict of heresy, up to the moment that he is subjected to a declaratory or con¬ 
demnatory sentence of excommunication. In conscience however, he is bound 
to observe the prohibition of canon 22G1 except when the second or third sec¬ 
tions of that canon give him permission to act, or when his offense is occult 
and he acts under the permission granted by canon 2232, §1, to protect his good 
name. Moreover, by virtue of canon 1095, §2, he may delegate other priests 
to assist at marriages during all the period in which he could validly assist 
himself; and hence such delegation is valid, in spite of his delict of heresy, up to 
the moment a judicial sentence is issued against him. 

It need scarcely be added that if a priest has incurred more than a simple 
excommunication,—i.e., he has been sentenced to deposition or degradation, or 
has automatically resigned his benefice or office by joining a non-Catholic seet¬ 
he has lost thereby all right to assist at marriages, and cannot validly do so. 
Moreover, it is controverted, and at best doubtful, whether a sentenced heretical 
priest can be validly delegated to assist at marriages even by an Ordinary or 


11 Hyland, Excommunication, p. 99. 

12 Tfiis phase of the Church’s legislation has been frequently treated, and hence will not be 
reviewed in this dissertation. Cf. Cappello, De Matrimonio; Dc Smet, Dc Matrimonio; Cerato, 
Matrimonium; Chelodi, Jus MatrimoninU; Petrovits, The Nav Church Law on Matrimony; 
Ayrinhac, Marriage Legislation in the Nero Code of Canon Law. 


The Delict of Heresy 81 

Pastor who has the right to delegate." Such delegation would certainly be illicit; 
and since it will likewise probably be invalid, it should never be consciously given. 

As regards the duty of the priest who finds that one of the parties to a mar¬ 
riage is an ex-Catholic, who has incurred .communication by a delict of heresy, 
and who further refuses to be reconciled to the Church, canon 1066 states the 
general principle that the priest she.:id not assist at the marriage in question, 
unless compelled by some grave cause, concerning which he should consult, if 
possible, the Ordinary. This prohibition does not apply to an occult heretic, 
even though the parish priest is aware of the delict and the existence of the re¬ 
sulting censure. 11 The canon refers only to public sinners and those notoriously 
under censure of excommunication. And even in these cases, a grave reason will 
permit assistance at the marriage. 15 If however this ex-Catholic has been de¬ 
clared viUmdus, an even more serious reason will be required, which, in the 
opinion of some canonists, should be gravissima . 15 

b. Acts of Jurisdiction 

The administration of Sacraments and Sacramentals involves the power of 
Orders. Other activities of the clergy are based upon the power of jurisdiction. 
Jurisdiction is defined as the power of ruling, or the power of commanding the 
faithful in all matters which are in any way necessary for the attainment of the 
ends for which the Church was instituted. 17 Its two chief kinds are ordinary 
jurisdiction, where the power of ruling is attached to an office and hence is 
possessed by whoever holds that office, and delegated jurisdiction, where a 
person is given certain authority, without possessing the office to which the au¬ 
thority regularly belongs. Obviously, it would be highly improper for anyone 
but a Catholic to exercise either ordinary or delegated authority, and thus to 
assume the role of directing the Catholic faithful in their religious life. Canon 
Law, guided by this principle, has consistently declared that those who do not 
possess membership in the Church,—heretics or other excommunicates,—are 
thereby incapacitated for the exercise of jurisdiction over the faithful. 18 More- 


15 Contra, V< .meersch-Creusen, Epitome, II, n. 396; De Smet, De Matrimonio, n. 122; favor¬ 
ing validity, Vlatning, Prackctioncs, n. 573, not. 2; Petrovits, New Church Law on Matrimony, 
followed Vlaming in his first edition, but changed to the contrary view in hie second edition; 
in each edition, n. 474. 

11 Canon 2232. 

11 Vermeersch-Crcuscn, o.c., II, n. 331; cf. S.C.S.Off., Jan. 30. 1867,— Collect, n. 1300. 

’* Chelodi, Jus Matrimoniak, n.67; Cappello, De Sacramentis, III, n. 332; Wcim-Vidal, Jus 
Canonicum, V, n. 202. 

17 Canon 196. Cf. Bargilliat, Prackctioncs, I, n. 175. 

1! Cf. Chapter One, above. In Lite legislation of the early Church councils, apostates and 
heretics not merely lost their positions in the Church, but likewise were not permitted to regain 
their former power of orders and jurisdiction, even after repentance,—c. 1-12, D. L. For 
medieval legislation, cf. c. 9, 16, X, de haereticis, V, 7. 







82 


The Delict of Heresy 


The Delict oj Heresy 


83 


over, the faithful were for centuries required, under pain of minor excommuni- js 
cation, to avoid communication with clerics and other superiors who had been j 
excommunicated. The Church did not recognize the right of these superiors | 
to rule the faithful, and obliged the faithful to avoid them; thus punishing | 
delinquent superiors by a two-fold barrier against their use of jurisdiction. 
Because of the difficulty of determining when a superior claiming jurisdiction | 
should or should not be obeyed, Pope Martin V introduced the mitigated dis- j 
cipline of distinguishing vitandi and tolerati . 10 >; 

A grasp of the general principles guiding the Church’s penal legislation makes is 
the law of the Code in the matter of jurisdiction clear and easily understood. .; 
Canon 2204 follows the same plan in regard to jurisdiction as was followed in 
the use of the power of Orders. As soon as a delict of heresy has been com- 
mitted, the delinquent incurs excommunication, and in that instant is bound in j 
conscience, 20 under pain of sin, to avoid exercising jurisdiction either in the :! 
internal forum or the external. Hence, he may not hear Confessions (which, be- 5 
side the power of Orders, requires the power of jurisdiction), nor grant dis- >j 
pensations, nor act as judge, nor in any wise act as an ecclesiastical superior. This > 
prohibition is not entirely absolute. As in the use of Orders, so in acts of juris- ;,j 
diction, the Code provides that in certain cases the power of jurisdiction already i;> 
possessed may be exercised even after a delict of heresy. These exceptions arc . 
not established as a favor to the delinquent, but rather as a favor to the faithful, 
for whose benefit the jurisdiction will be employed. Thus, if the faithful request ;. 
a cleric to act in some matter hitherto within his competency, he may do so ?. 
validly and licitly, despite the censure he has incurred, provided he has not q 
yet received a judicial sentence of excommunication. Again, if one of the faith- 
ful is dying, and needs some exercise of jurisdiction, any priest may exercsise 
jurisdiction, even though he has been declared not merely excommunicate, but i] 
even vitamins. Hence (outside of the ministration to the dying), e.cts of juris- ; 
diction by a sentenced heretic are both invalid and illicit; an unscntenced ;] 
heretic acts both validly and licitly when he has been requested, at least im¬ 
plicitly, by the faithful, but otherwise acts validly but illicitly. Moreover, } 
if a cleric has been guilty of a delict of heresy, and its commission becomes j 
known to the Bishop so that a declaratory sentence has to be issued, the good ; 
of the Church will regularly require that further steps be taken in accordance 
with canon 2314, §1, n. 2. A canonical warning will be issued, and if this docs j 
not lead to recantation and repentance, the cleric will be deprived of any po- 1 
sition he may have held, and thus of the source of any jurisdiction. Thereafter ; 
his acts will be entirely invalid on this score. , 

We have therefore the following possibilities: 


13 Cf. pages 12, 01, note 2S. 
23 Canon 2232. 


1. The occult heretic: he is bound in conscience to avoid the exercise of 
jurisdiction until he has been absolved; but may licitly and validly act when 
such actions are necessary, either" to avoid infamy (canon 2232), or when re¬ 
quested even implicitly by the faithful; save for these exceptions, he acts validly, 
but illicitly. 

2. The public heretic, who has not yet been restrained by his Bishop or by 
judicial sentence; his acts of jurisdiction are valid, but illicit, except when re¬ 
quested by the faithful. 

3. The sentenced heretic: his acts are both invalid and illicit, except in the 
one case when he is requested to act by a dying Catholic. 

This last case is rare, but may be briefly reviewed. If a dying Catholic wishes 
to receive the Sacraments, for the peace of his conscience and (if the Sacrament 
be Matrimony) for the legitimation of offspring, any priest, even a vitandns, is 
fully empowered by the Church to act in her name. Hence he may administer 
the Sacrament of Penance, and therewith exercise jurisdiction and grant absolu¬ 
tion from any sin or censure whatsoever. 21 Canon 2261, §3, permits a Catholic 
who is in danger of deatii to seek and receive the Sacrament of Penance from 
even a sentenced heretical priest, even if there are present or available other 
priests in good standing, possessed of faculties for the administration of this 
and other Sacraments. This is a favor extended to the Catholic in what may 
be the last moments of his life, and is designed to remove any difficulty or repug¬ 
nance which he might feel toward the Sacrament of Penance, if he could only 
receive it from the approved priest. This generous permission exists only in 
regard to the Sacrament of Penance. The sentenced heretical priest cannot ad¬ 
minister other Sacraments or Sacramentals if an approved priest is present. 

This law for the administration of the Sacraments governs indirectly the 
sentenced heretic’s acts of jurisdiction. In the administration of Penance, an act 
of jurisdiction is involved; and in permitting die sentenced heretic to administer 
this Sacrament, the Church is giving him jurisdiction ad hoc. Since the law 
provides for this exercise of jurisdiction, it is both valid and licit, despite the 
fact that the priest is a sentenced excommunicate. 

Likewise, in the absence of any approved priest, the sentenced heretic may 
have occasion to exercise further jurisdiction in connection with the Catholic who 
is in danger of death. This possibility would arise in connection with the case 
in which the Catholic, is not merely in pericitlo mortis, but likewise urgente pert - 
culo mortis , and in addition it is impossible to reach the Bishop for a necessary 
dispensation 28 which the Catholic wishes to obtain for a marriage that will give 

21 Canon 882. 

w The Bishop “cannot be reached' 1 if it is impossible to see him in person or send a letter 
and receive an answer. Communication with the Bishop by telegraph of telephone is con¬ 
sidered an extraordinary method, and even if this communication is possible, the Bishop 
“adirc ncquil ” in terms of the canon,—Comm. Interpret. Cod,, June 2, 1918,— A.A.S., X, 602. 




84 


The Delict of Heresy 


The Delict of Heresy 


85 


peace of conscience or legitimacy to his children. 23 This case could involve the 
sentenced heretical priest only if he has been summoned to assist the dying 
Catholic, under the provisions of canon 2261, §3. If he has been requested to 
act because no other priest is present, (and if all the conditions of canon 104.3 
are verified), then he may not merely perform the marriage, as desired by the 
dying Catholic, but likewise dispense the Catholic from any impediment except 
the two mentioned in canon 1043, viz., the impediment arising from the priestly 
character, and the impediment of affinity in linca recta. It may be noted that 
the need of obtaining this dispensation is the essential motive for calling upon 
the sentenced heretical priest; for in the absence of all impediments, the de¬ 
sired marriage can be performed, under the conditions of canon 1098, §1, merely 
in the presence of two witnesses.When this need exists, the exercise of juris¬ 
diction, as in the case above, is both licit and valid. 

If there is no need of a dispensation, cation 1098, §1, provides that a dying 
Catholic may contract a valid and licit marriage simply in the presence of two 
witnesses, if a competent priest cannot be obtained to solemnize the marriage. 
The second section of the same canon imposes an obligation to summon any 
other priest who can be present, even though he is not regularly competent for 
the solemnization of marriages. This requirement does not affect the validity 
of the marriage, and hence the failure to summon such a priest does not in¬ 
validate a marriage which has fulfilled the requirements of the first section. The 
question may arise of whether or no to summon an available priest who is known 
to have committed the delict of heresy, and hence to be excommunicated. The 
text of canon 1098, §2, speaks simply of “alius sacerdos qui adesse possil," a 
phrasing which does not positively exclude excommunicated priests. Vermeersch- 
Crcusen 23 and Cappello« insist however that the parties should not summon a 
vitandus, since his presence would add nothing to the validity of the marriage, 
and since it is the mind of the Church to avoid the vilandi in all the concerns of 


53 Canon 1044, 

:• Hvlancl, ( Excommunication , p. 109), argues that the exercise of jurisdiction by dispensing 
under the authority granted by canon 1044, applies only to the case in which one of the parties 
is dying. Canon 1098 also provides for summoning any priest when a competent priest will be 
absent, (according to a prudent judgment), for a month or more. This delay of a month is 
considered by the Church a sufficient reason for setting aside the canonical form of marriage 
in the presence of a competent priest. But, supposing under these circumstances of the com¬ 
petent priest being absent for a month, the parties wish to be married, but are impeded by a 
canonical impediment: May thev summon a sentenced heretical priest and obtain from hint a 
dispensation which will allow them to proceed with tile marriage? The case would be rare in 
practice, and therefore is of more theoretical than practical value. It would seem however 
that a negative answer should be given, since canon 2261, §3, which gives the sentenced heretic 
jurisdiction, only does so “in solo mortis pcricitlo". If the parties are in no such danger, the 
mere fact of a delay of one or more months does not seem a sufficient reason for granting a 
heretical priest the extraordinary power of dispensing. 

55 Epitome, II, n. 406. 

36 De Sacrantentis, III, n. 69G. 


: life. 27 The same considerations lead Cappello to the opinion that the parties 
’■ should not summon either the vitandi or the sentenced tolcratip* —since the latter 

4 arc to be repelled from active participation in religious services. 29 Others, fol- 
j lowing the exact language of the canon, hold that the parties should call for the 
; presence of any priest, without distinction as to his status. 130 

| c. Legitimate Ecclesiastical Acts 

1 The two preceding sections have dealt with heretical priests, in regard to their 
| power of Orders and their power of jurisdiction. The present section deals with a 
'■ number of official activities which arc regulated by law, and hence are given the 
; name of legitimate acts, and which are performed commonly by clerics, but also 
i at times by lay persons. Hence our attention is not now confined solely to the 
j clergy. 

W Canon 2256, §2, gives a list of these legitimate ecclesiastical acts: the adminis- 
p tration of ecclesiastical goods; the functions in ecclesiastical causes of judge, 
i| auditor, relator, defensor vinculi, promotor justitiac and fidei, notary, cursor and 
apparitor; the office of chancellor, of advocate and procurator; the office of 

5 sponsor in the Sacraments of Baptism and Confirmation; the act of voting in 
1! ecclesiastical elections, and the exercise of the juspatronatus. The reading of 
[; this list of activities shows that it comprehends three chief sections: first, 
j; sponsors at Baptism and Confirmation, who have taken upon themselves in 

this post certain rights and duties in regard to the spiritual education of those 
[■„' receiving the Sacraments, and hence represent the guidance of the Church; 
d secondly, participation in elections of new officials; and thirdly, various offices, 

:. of high and low degree, which participate in the daily routine of administration of 
; property and justice,—i.e., in the Church’s official life as a social organization. 

' apart from the use of orders and jurisdiction. 

In pre-Code legislation, this taxative enumeration was not made, and no one 
j law indicated the effect which a delict of heresy would have upon these varied 
1 activities. However in various sections of the Corpus Juris, there were pro- 
) hibitions of legitimate acts which indicate that the legislation of the Code is 
■j simply a continuation of the older practice of the Church. The basic law of 
the Code is contained in canon 2263, and follows the same general plan as that 
already noted in connection with the use of Orders and of jurisdiction. 

The largest portion of the legitimate acts center around the chancery and 


37 Canon 2267. 
j 58 Dc Sacramcntis, l. c. 

29 Canon 2257, §2. 

30 Cerato, Matrimonium, n. 95; Petrovits, Matrimony , n. 501; Augustine. Commentary, V, 
925. 




86 


I 


l- 


The Delict of Heresy 

courts of the Church. Obviously there is a striking impropriety in having a 
heretic actively engaged in these offices. Hence heretics were definitely ex¬ 
cluded from forensic communication from the earliest days, as part of their 
general excommunication. 51 After Martin V issued his Constitution Ad 
Evitanda," this exclusion was absolute only for the mtandi. As regards the 
lolcrati, the faithful were left free to communicate with them or not, as occasion 
warranted. Hence the heretic could continue to act in judicial matters, unless 
and until the exception of excommunication was urged against him.* There 
seems to have been no explicit legislation removing excommunicates from 
the administration of ecclesiastical property. 38 But heretics and other ex¬ 
communicates were forbidden to take upon themselves the spiritual duties of 
sponsors at Baptisms and Confirmations, for which their status obviously in¬ 
capacitated them. 31 


This legislation is continued in the Code. Canon 2263 reads: 

Removetur excommunicatus ab actibus legitimis ecclesiasticis 
intra fines suis in locis jure definitos; nequit m causis eccksiasticis 
agere, nisi ad normam can. 1654; prohibetur ecclesiasticis offiens scu 
muneribus fungi, concessisque antea ab Ecclesia pnvilegus frui. 


There are herein three statements. First, the heretic is removed from legitimate 
ecclesiastical acts in accordance with special provisions of the Code, as given 
under its special headings. Since penal law is a res odiosa, it seems proper to hold 
that where the law, under the special headings, does not legislate against here¬ 
tics, this section of canon 2263 does not affect them either. 33 However, the 
number of special statements declaring the acts of heretics and other excom¬ 
municates to be invalid or illicit is considerable, and hence this loophole is more 
apparent than real. Also, in the case of heretics, canon 2314, §1, n. 2 provides 
that after a fruitless canonical warning, the judge shall deprive the delinquent 
of any benefice, dignity, pension, office or other position he may have held m the 
Church. In other words, once the delict of heresy is juridically established, and 
continuing contumacy is proved in the delinquent, he is to be removed from 
any possibility of performing legitimate ecclesiastical acts as an administrative 
officer- and the somewhat distinct office of sponsor is explicitely provided for in 
the special legislation of canons 765-766; while participation in elections is 
regulated by canons 2265 and 167. 


3 1 c 23-26, C. II, q. 7; c. S,ll,12, X, dc hacrclicis, V, 7. 

m If‘this objection was substantiated in eight days, the judge was obliged to exclude tne 
censured person,—c.l, de exccptionibus, II, 12, in Sexto, 

a Suarrez, De Censuris, disp. XIII, s. 2, n. 6; Crnica, ModificaUnnes, p. 101. 

3 . Roman Ritual, Tit. II, cap. 1, nn. 22-26; Roman Pontifical, tit. De Confirmandts. 

15 Hyland, Excommunication, p. 126. 




The Delict of Heresy 


87 


The third provision in the canon prohibits heretics and other excommunicates 
to discharge ecclesiastical offices and charges. “Officia” are defined as positions 
stably instituted by divine or ecclesiastical authority, carrying with them some 
participation in the ecclesiastical power of orders or jurisdiction. 3 ' This part of 
the canon is therefore a further insistence upon the regulations already made in 
regard to the exercise of orders and of jurisdiction. 37 “Mnnera” are not explicitly 
defined by the Code, but the term suggests some general idea of office, employ¬ 
ment or duty. The combining of these two terms seems to indicate a desire to 
avoid the strict delimitation which would be given a single term, and to require 
that heretics abstain from fulfilling any office or duty that, had been assumed for 
a spiritual purpose. 38 And, since they have already been deprived of the licit 
exercise of both Orders and jurisdiction, this further obligation to avoid dis¬ 
charging their spiritual offices is a logical and necessary consequence. 39 

This regulation leads properly to the further provision that the heretic is not 
to enjoy privileges previously granted by the Church. Privileges are special or 
permanent faculties granted by a superior, providing for acts and statuses which 
are contrary to or different from the ordinary provision of law. Canon 2263 
is a punishment inflicted on the individual. He therefore loses the right to enjoy 
any personal privileges previously accorded him. Real privileges,—given not 
to a person, but to a thing, place, office or dignity,—are not directly affected by 
the delict of any individual; although part of the punishment of the individual 
delinquent may be the loss of the position which enabled him to enjoy and 
use these real privileges. Certain privileges are granted an individual, not for 
his own benefit, but simply to be used in benefit to others; e.g., special facul¬ 
ties for absolving from reserved sins; it would seem that the heretic may con¬ 
tinue to use such privileges as often as he may act in these matters at all. In 
such cases, the "fungi" of the text is verified rather in the penitent or other bene¬ 
ficiary, than in the heretic himself. 40 

Last place has been reserved for the consideration of the second provision in 
canon 2263, which states that excommunicates cannot be plaintiffs in ecclesi¬ 
astical causes, except under the provisions of canon 1654; and this because the 
point deserves somewhat fuller treatment. Canon 1054 reads as follows: 

1. Excommunicatis vitandis aut toleratis post sententiam de- 
claratoriam vel condemnatoriam permittitur ut per se agant tantummo- 
do ad impugnandam justitiam aut legitimitatem ipsius excommuni- 
cationis; per procuratorem, ad aliud quodvis animae suae praejudi- 
cium avertendum; in reliquis ab agendo repelluntur. 


ls Canon 145, §1. 

17 Canons 2201,2264. cf. Sole, De Delictis, n. 22G. 

33 Hyland, Excommunication, p. 141, Meestcr, Juris Canonici Comp., Ill, pars. II, n. 1765. 

33 Sole, De Dcliclis, n. 226. 

" Cappello, De Censuris, n. 152; this doctrine is admitted as probable by Cipoilini, De 
Censuris, n. 05, but lie himself leans to the opposite doctrine; sc also Pighi, Censurae, n. 24. 






88 


The Delict oj Heresy 


89 


The Delict oj Heresy 

2. Alii excommunicati generatim stare in judicio queunt. 

This canon clearly defines the right of a sentenced heretic to appear personally 
and contest any judicial sentence decreed against him. This is simply the right 
of self-defense which is part of the natural law, and which has always been recog¬ 
nized by the Church. 11 Secondly, sentenced heretics may defend themselves 
against any other threatened danger in the spiritual order, not in person, but 
through a proxy: some canonist or other cleric or competent layman who is in 
good standing in the Church, Whenever the judge prudently decides that there 
is such spiritual danger, he must admit the representative of the heretic, and the 
case by him instituted. Thirdly, outside of these two cases, the sentenced here¬ 
tic, whether viiaiidus or tolcratus, has no standing in an ecclesiastical court as a 
plaintiff. He may be summoned to answer charges by others, but he may not 
appeal to the Church’s courts to require that the Church use her power to 
secure his real or asserted rights. This is both just and natural, since he has 
already, by his deliberate delict and contumacious refusal to amend, cut him¬ 
self off from the Church. If, however, a sentenced heretic were to institute an 
action, and carry it through in part or even to a sentence, the whole process in¬ 
cluding the sentence must be held null and void, once the fact that the plaintiff 
was a sentenced heretic is established: "vitio ivsanabilis nullitatis laborat 

Heretics who have not been sentenced for their delict may, according to 
the canon, be plaintiffs, with the limitation that this holds fi* general. This 
limitation is made clear by the reference to canon 1628, §3, which permits in¬ 
terested parties to interpose the exception of excommunication at any stage of 
the judicial proceedings, up to the definitive sentence. 13 When this exception 
is entered and substantiated, the court must issue a declaratory sentence against 
the heretic, and therewith exclude his action on the basis of the legislation 
recorded above. 11 

It was the common teaching of canonists that marriage cases were included 
among those in which a heretic might find himself in spiritual danger, and in 


11 Under pre-Code law, the vitandlis had first to secure absolution from his censure, before 
lie could plead his cause. The reason was that his delict was so heinous and so certain, before 
he incurred this final censure, that he deserved no hearing from the Church until he gave 
evidence that he w r as no longer contumacious. Cf. Hyland, o.c., p. 138. 

15 Canon 1892, n, 2. 

u Nova!, (De Judiciis, n. 222), holds that when a sentence has been reached in these cases, 
and appeal is being taken against the sentence, the exception of excommunication cannot be 
proposed in the appeal. But Roberti, (De Processibus, 1, n. 175), argues conclusively that a 
definitive sentence is not that of the court of first instance, but rather the sentence finally 
rendered in quolibet gradu; and that therefore the exception can be entered against the first 
sentence. 

n Canon 223, W; Cappello, (De Censnris, n. 42), suggests that the judge should not allow 
this exception to be pressed against a sim flutter ioieratns, unless there is a just cause. 


which he had a right to be plaintiff, at least through a proxy. 13 However, in 
‘ January, 1928, the Holy Office determined to clarify its competence with regard 
| to the other Roman Congregations and inferior Roman tribunals. Hence there 
■| were proposed to the Supreme Congregation of the Holy Office the following 
i dubia;* 6 

1. Utrum in causis matrimonialibus acatholicus, sivc baptizatus 
sive non-baptizatus, actoris partes agere possit? 

2. IJtrum in quibuslibet causis matrimonialibus inter partem 
catholicam et partem acatholicam, sive baptizatam sive non-baptiza- 
tam, quocumque modo ad Sanctam Sedem delatis, Suprema Sacra 
Congregatio Sancti Oficii exclusivam habeat competentiam? 

The answer to the first dubktm was negative, with the added reason that 
:. ; i canon 87 should apply to such cases. This means that non-Catholics are not 
A to be considered as mere excommunicates, but as in a distinct status of heresy 
) (or infidelity); and that this status results in their having less right to institute 
proceedings before Catholic marriage courts than Catholics who are involved in 
j excommunication for some offense which does not destroy his Catholic faith. 
Is Non-baptized persons have not, in the language of canon 87, been “constituted 
j persons in the Church of Christ, with the rights and duties of Christians”; and, 
i not having the rights of Christians and Catholics, have no status for approaching 
i) die Church’s courts and demanding the use of her authority to redress their 
[j alleged wrongs. Heretics are indeed baptized persons; they were “constituted 
[j persons in the Church of Christ with the rights and duties of Christians”; but 
their external delict of heresy has “interposed an obstacle impeding ecclesias- 
f tical communion,” and, moreover, they are subject to “a censure imposed by 
; the Church." Both of these facts are recognized by canon 87 as preventing the 
: claiming of rights. It may be further urged that any baptized person who joins 
a non-Catholic sect or publicly adheres thereto, has been declared juridically in¬ 
famous; and this involves a disqualification or disability for legitimate ee- 
: ciesiastical acts, 11 and a further characterization as a suspcctus, whose testimony 
: is to be rejected in ecclesiastical courts. 13 

Aiiis decree therefore excludes from Catholic marriage courts cases in which 
; non-Catholics are the plaintiffs. It is generously added that whenever there 
■ ■ seem to be special reasons for allowing a non-Catholic to be plaintiff in inatri- 
nionial causes, permission to this effect can be secured upon application to the 


“ Nova!, De Judiciis, p. 105; Vermeersch-Creusen, Efltome, 11], n. 79; Wernz-Vitlal, Jus 
Cutwnicum, VI, n. 210; Hyland, Excommunication, p. 13S. 

“T/l.-S., XX, pp. 75-70. 

4T Canon 2294, §1. 

« Canon 1757, §3, n. 1. 




00 


The Delict oj Heresy 


Holy Office 49 As a matter of fact, the plaintiff in the well-known Vanderbilt 
Marlborough trial was a non-Catholic. The Church has never been unwilling 
to do justice when her courts are the proper hope even of a non-Catholic party. 
Moreover, it has been suggested that this decree is a restriction of rights, and 
as such must be interpreted strictly. 59 In the decree there is reference to causis 
matrimonialibus." The word "causa" is a technical term, and has been dis¬ 
tinguished in the Code from “casus,"—the latter being used for certain rela¬ 
tively informal settlements of matrimonial difficulties. 5 ' Under a strict inter¬ 
pretation of the decree, a non-Catholic might seek and be accorded a decision 
under canons 1990 -1992, without violating the prohibition of the Holy Office. 59 


d. Jus Eligendi Praeseniandi Nominandi 
In canons 2265 and 2260, the Church punishes clerics who are guilty of heresy 

„ - 1 f • 1 ■ - ^ 11 T T 


by restricting them in the exercise of Orders and of jurisdiction. She is equally 
alert to prevent heretics from attaining to offices which involve the power of 
jurisdiction, and require, to some extent, the power of Orders. To this end. 
she legislates against the election of heretics to office, and, as a further safeguard 
against unworthy elections, legislates likewise against heretics sharing in the 
appointment, or election in any form, of any candidate, Both of these measures 
are manifestly ordained to secure proper persons to fill all places of responsi¬ 
bility in her organized life, and as such need neither explanation nor justification. 

Under pre-Code discipline, all appointments, presentations, nominations and 
votes in ecclesiastical elections were prohibited in the case of any heretic; and this 
under pain of invalidity if he were vitandus; and if he were toleraius, his act 
could and would be declared invalid if it were challenged by any of the faithful 
on the score of his censure. 53 Likewise, under the law of the Decretals, any 
process which resulted in the giving of ecclesiastical office to a heretic was 
thereby invalid. 54 Even after the Constitution "Ad Evitanda," canonists taught 
that excommunicates were invalidly placed in such positions, and this without 
distinction of 1 ’ilandi, toleraii, notorious or occult delinquents. 55 

D'Annibale, with his customary attention to liberal views, noted that it 
would be better to concede the validity of the process in the case of a toleraius, 
since otherwise there would be serious inconvenience to the faithful, who would 


« The response to the second dubium gives the Holy Office sole competence over matrimonial 
causes between a Catholic and a non-Catholic, when these are brought m any wa> before the 
Holy See; cf. canons 247, §3, and 1557, §1, n. 1. 


60 Canon ID. 

“ Canon 19DO-1992. 

m Park, Ecclesiastical Review, January, 1930, p. 70. 
•» Wernz, Jus Decrelalium, II, n. 357. 
w Wernz, o.c., VI, n. 193. 

65 Wernz, ibid. 


E? The Delict of Heresy 91 

I' frequently be doubtful as to whether or not a given official were validly in office. 55 
j| Wernz noted this opinion, and suggested that the difficulty might be solved by a 
t; invalidating the process in the case of those who had been juridically 
[:i sentenced, and whose censure was thus notorious in law, while keeping valid the 
jj process in the case of other non-notorious delinquents. The Code has adopted 
N this plan. 

Canon 2265, §1, n. 1, prohibits all excommunicates,—and therefore all here- 
1; tics,—the exercise of any right to elect, present, or nominate others to ecclesiastical 
h positions. This prohibition makes all such actions illicit The second number of 
this canon decrees that when the delinquent is vitandus or even toleratus post sen- 
| teutiam, his action is invalid in these matters. Hence sentenced heretics cannot 
j validly share in any way in the filling of Church offices. Furthermore, if a 
j person otherwise qualified to act has been guilty of a delict of heresy, and if 
i he is challenged on this ground in advance of action to fill a Church office, he 
I may be subjected to a declaratory sentence on the basis of his delict, and thus 
1 rendered incapable thereafter of sharing in the process of filling the office. If 
j however such an individual has already acted, by voting with others for a can- 
; didate, the election will be held valid, unless it be clearly evident that if he had 
I not voted, the successful candidate would not have received sufficient votes 
for election, or unless the other voters knowingly allowed him to vote, with full 
! consciousness of his incapacity. 57 

| The second section of this same canon states that heretics and other ex- 
communicates cannot acquire any ecclesiastical dignity, office, pension, or other 
< charge, even by the action of others. This legislation is further qualified to in- 
,j dicate that unsentenced heretics are only illicitly placed in office, while sen- 
■ tunced heretics whether tolcrati or vi lands', arc invalidly elected or appointed, and 
.< do not receive the office at all. 

e. Promotion to Orders 

Canon 950 states that in law the term "Orders’' in its various forms refers 
not merely to Major Orders,—the episcopate, priesthood, diaoonatc and sub- 
; diaconate,—but likewise to minor orders and tonsure. The records of the early 
councils show that heresy and apostasy not merely barred the delinquent from 
j attaining Orders, but even from the further exercise of Orders already received. 58 
This discipline was retained, with some limitations in the case of those who 
repented, in the Decree of Gratian 59 and in the Decretals. 59 

46 Wernz, ibid, not. 300, 

51 Canon 107, §2; cf. c. 25, 20, X, de electione, I, 0. 

E * See Chapter One, above. 

E » C. 2, 4, D. XXIII; C. S, D. XXIV; c. 10-32, D. L. 

C. 5, X. de electione, 1, 0; c. 9, X, de haereticis, V, 7. 







92 


The Delict of Heresy 


The Delict of Heresy 


93 


It has been already noted that heretics are forbidden the licit reception of 
the Sacraments;*' under this law, as well as canon 2205, they may not be con¬ 
secrated Bishops, priests or deacons. 65 The same canon 2200 forbids the recep¬ 
tion of Sacramentals by sentenced excommunicates, and hence excludes these 
delinquents from minor orders and tonsure. Canon 2205, §1, n. 3, reaffirms 
this legislation, and adds a general statement that no heretic or other excom¬ 
municate may be promoted to Orders. This prohibition can only make the 
reception of the Sacrament of Orders illicit; 53 As to minor orders, which are only 
Sacramentals, there might be question as to whether these were validly re¬ 
ceived by a sentenced excommunicate. 6 * 

As parallel to this legislation may be noted the provisions of canon 093 and fol¬ 
lowing, which regulate membership in confraternities, tertiary orders and similar 
pious associations. These societies commonly have special statutes of their 
own which would exclude heretics. In addition, the general law of the Church 
provides that notorious excommunicates cannot be received into such associa¬ 
tions ; and that any member who becomes a notorious excommunicate should be 
expelled in the manner provided by the statutes. 65 

Reception of Orders by a heretic is likewise prohibited by various irregu¬ 
larities and impediments which are associated with heresy. By irregularity is 
meant an unfitness for, and consequent prohibition of, the reception of Orders, 
or the exercise of Orders by those who have already been ordained. These 
irregularities are of two types: irregularities ex dejecta, where the unfitness and 
prohibition arise from defects in the person,-—in his physique, paternity, repu¬ 
tation, etc.,—which are deemed so serious that the person laboring under these 
handicaps cannot fitly engage in the sacred ministry; and irregularities ex delicto , 
which result from the commission of crimes so serious as to indicate that the 
person is not morally worthy of the high honors and responsibilities of Sacred 
Orders. 66 

Careful choice of the ministers of the Church has always been part of the 
Catholic discipline. Something of this may be seen in Paul’s instructions to 
Timothy 67 and to Titus. 68 Gratian included in his Decree a long canonical dis- 


81 Canon 22C0; cf. pages 01, 02 above. 

62 Subdiaconate is not (probably) a Sacrament, although included among the Major Orders, 
—Noklin, De Saer amends, n. 450, 453. The reception of the Subdiaconate is prohibited at least 
bv canon 2205, §1, n. 3, and probably by canon 2260. 

03 Blat. Commentarium, V, n. 92. 

64 Paschang, Sacramentals, p. 74. 

55 Cf. the interesting legislation concerning the membership of masons in pious associations 
in South America,—Pope Pius X, cp. “Quamguam", May 29, 1S73,— Fontes Codin's J.C., n. 
563; ep. " Exoriae ”, April 29, 1S7G ,—Fontes Codicis J. C., n. 571. 
ce Canons 984-9S5. 

* I Tim., Ill, 1-13. 

68 Tit., I, G-9. .Vote that these texts are immediately followed by warnings against heretics. 


j _cussion of the necessary qualities in those who seek ordination, and in his corn¬ 
's pilation of the canons and laws of. the early Church may be found most of the 
■i provisions of the present legislation. 66 

3 Among the irregularities ex defectu, this dissertation is concerned only with 
3 that which arises from juridical infamy. 70 As was seen above, canon 2314 in- 
fij diets juridical infamy upon those who join or publicly adhere to non-Catholic 
sects, and also upon heretics who, after canonical warning, do not recant and 
i:i repent. The Code repeats several times, in various canons, that this status of 
infamy is a sweeping disqualification. As an irregularity, it impedes the recep- 
| tion of orders. 71 As a vindictive penalty, it causes an incapacity for the ac- 
j quirement of benefices, pensions, offices and ecclesiastical dignities, for the per¬ 
formance of legitimate ecclesiastical acts, and for the fulfilment of ecclesiastical 
j offices and the exercise of rights; and furthermore, all such infamous persons are 
to be repelled from the exercise of any ministry in sacred functions. 72 It fol- 
ij lows then that all baptized persons who have joined a non-Catholic sect, and 
: all heretics who have been sentenced under canon 2314, §2, n. 2, are subject to 
this complete disqualification for obtaining exercising official places in the 
3 Church. Moreover, the status of juridical infamy persists until it is dispensed by 
■ the Holy See. 75 Even if the sin of heresy is forgiven, and absolution is obtained 
from the excommunication, the status of infamy will still remain and need 
■' special dispensation before the delinquent can regain normal status in the 
: Church. 

;i Canon OSS gives a complete list of the irregularities ex delicto. Two of these 
j concern heretics: 

Sunt irregulares ex delicto: 

1. Apostatae a fide, haeretici, schismatici; 

7. Qui actum ordinis, clericis in sacro constitutis reservatam, ponunt, 
vel eo ordine carentes, vel an ejus exercitio poena canonica sive 
personali, medicinali aut vindicativa, sive locali, prohibit,!. 

The application of these canons needs no special comment. All those who in¬ 
cur censure for being heretics, apostates or schismatics, incur tins irregularity 
at the same time. 7 * Under the seventh number quoted above, those heretics who 
perform an act involving the exercise of Sacred Orders,— saying Mass, adminis¬ 
tering a Sacrament, etc.,—and this in violation of a prohibition to exercise 


65 Dist. XXIV and following. 

7(1 Canon 9S4: cf. c. 2, C. VI, q, 1. 

71 Cf. canon 90S, §2. 

7S Canon 2294. 

71 Canon 2295. 

71 Even those who were heretics in good faith need n dispensation ad cantelatii before they 
may be promoted to Orders,—Vermeersch-Creusen, Epitome , II, n. 257, 1. 




94 


The Delict of Heresy 


95 


The Delict of Heresy 

Orders in the future, 75 thereby incur a further irregularity. This serves as a 
sanction for the prohibition stated in canon 2201, which forbids excommunicates 
the exercise of Orders. Moreover, the irregularity exists even if the delinquent 
is ignorant that the law inflicts it upon him: 76 Finally, it is quite possible for a 
heretic to be irregular on several counts; by the delict of heresy, by thereafter 
exercising Sacred Orders in conscious violation of the excommunication; and 
by various other delicts attended with irregularity. 77 Repetition of the same 
offense, however, does not multiply the irregularity. 78 

In addition to irregularities, the law establishes what are called simple im¬ 
pediments. These are distinguished from irregularities chiefly in the fact that, 
whereas the latter are per se permanent in character, and cease only if they are 
dispensed, the former are temporary matters, which may cease to exist by some 
change of circumstances. They may likewise be overcome by dispensation. 79 

Simple impediments are listed in canon 987. Only the following pertain to 
this dissertation: 

Sunt simpliciter impediti: 

1. filii acatholicorum, quamdiu parentes in suo errore permaneant; 

7. qui infamia facti laborant, dum ipsa, iudicio Ordinarii, per- 
durat. 6l> 

As regards the first category, pre-Code law established this impediment against 
sons and grandsons of heretical fathers, and against sons (only) of heretical 
mothers. 81 The fact that the person is a candidate for Orders presupposes that, 
despite his parentage, he himself is a Catholic, and that the impediment is 
occasioned by the fault of his parents, and not by any fault of his own. Hence 
it almost seems, at first sight, as if an innocent individual is made to suffer for a 
delict in which he had no personal share. This seeming injustice is explained away 
by the fact that simple impediments are not punishments, but simply the result 
of certain facts which render promotion to Orders improper. The heretical 
status of parents is such a fact. 87 It creates a justified fear that the children arc 
not of the proper type, and have not lived in the proper environment to be 


A simple prohibition, making the act illicit in the internal forum does not suffice,— 
Vemieersch-Creusen, o.c., n. 257, 7. 

7t Canon OSS; this is an application of canon 16. 

77 Canon 9S9. 

75 Except in delicts of voluntary homicide,— ibid. 

75 C. 10, X, de haercticis, V, 7; c. 15, de hacreticis , V, 2, in Sexto. Cf. Vermeesch-Creusen, 
Epitome, 11, n. 252. 

““ Heretics, like other persons, may be impeded by marriage, slaver}', etc.; but these im¬ 
pediments arc not essentially connected with heresy as such, and hence need not be treated 
here. 

81 C. 2, 15, de haercticis, V, 2, in Sexto; S.C.S.Off., Dec. 4, 1890,— Collect., n. 1774; March C, 
1S91,— Coiled., n. 174S. Cf. Wernz, Jus Decretalium, II, n. 139. 

*- VVernz, o.c., VI, n. 287. 


1 ; 

suitable candidates for the high dignity and grave responsibilities of the clergy, 

■ especially in the primary duty of guiding the faithful in the knowledge and 
practice of Catholic faith. 

This legislation has been given two official interpretations which specify 
its meaning. The first, dated October 1G, 19!9, 63 states that even if one parent 

[ is a Catholic, the other being a non-Catholic, the impediment nevertheless exists; 
and the fact that the parents received a dispensation for their mixed marriage 
does not remove the impediment. In other words, the Church recognizes that 
even where only one parent was a non-Catholic, the children arc still liable to 
partake, perhaps even unconsciously, in the errors of that parent. 

The second interpretation is dated July 14, 1922, si and declares that the term 
"filii” is to be understood as meaning sons, and sons only. In other words, 
the Code changes the older legislation, which made grandsons as well as sons 

I of non-Catholic fathers subject to this impediment. The grandson is not in¬ 
cluded in the present legislation. 

It may be further noted that, in the opinion of Vermecrsch-Creuscn, this im¬ 
pediment ceases at the death of the heretical parent or parents. 85 The reason 
alleged is that canon 987 is penal law, and consequently subject to strict inter¬ 
pretation; the impediment exists “quant diu parentes in suo crrorc permanent,’' 
and they can scarcely lie thought to persist in error after their death. Moreover, 
simple impediments have relation to the present status of the person, and, ad¬ 
mittedly cease to exist when the circumstances of the person change; the death 
of the heretical parent is, in the opinion of these authors, such a change of cir- 
; cumstanccs. Pruemmer 86 adopts the same doctrine, without discussing it. 
; As opposed to this, Blat 87 argues that the death of the parent or parents means 
that, their assent to error has become perpetual,—death having deprived them 
of any opportunity to change their views. In view of the controversy, a dis¬ 
pensation ad cautelam may be sought and issued. 

; Another controverted point concerns the meaning of the term “ acalhohcorwn ” 
in this canon. Vermecrsch-Creuscn 68 claims that if the parents are technically 
infidels, the sons are not subject to this impediment. In support of this opinion, 
appeal is made to a decision of the Congregation of the Council, which held 
| that the impediment did not exist in the case of a son of Jewish parentage. 89 
I Augustine 90 holds that the term “acatholicorum” should be understood in a broad 


83 Resp. Comm. Interpret. Cod.,— A.A.S> t XI, 478. 

8l Resp. Comm. Interpret. Cod.,— A.A.S., XIV, 52S. 

** Epitome, II, n. 259. 

85 Manualc Juris Canonici, p. 411. 

87 Commentarium, III, Dc Sacramenlis , 355. 

88 Epitome , II, n. 259. 

89 The decree is cited in Richter, Concilium Tridcnlinum, p. 339. 
w Commentary, IV, 498. 




00 The Delict of Heresy 

sense as including all those who do not accept the teachings of Catholic faith; 
and Blat 91 argues at some length that the legislation of the Code has changed 
what was admittedly the legislation prior to the Code. Here again a dispensation 
ad cautelam would be the appropriate practical solution. 

Number seven of canon 987 states that a simple impediment arises from in¬ 
famy of fact,—i.e., from the judgment of the community that a person has com¬ 
mitted such crimes and is of such bad character that he must be considered as 
lacking in honor, reputation and standing, and hence unworthy of advancement 
to Orders. 92 This infamy of fact is incurred apart from any judicial process, and 
represents the judgment of the community as to the religious character and 
standing of the individual involved. Among Catholics, such infamy of fact 
could well be incurred by a Catholic who publicly and knowingly apostatized or 
became a heretic. It is true that belief or unbelief today attract little attention, 
and that the defection of a Catholic would often pass unnoticed. But if the 
Catholic had been in some position which called attention to his defection from 
the faith, the resulting publicity might be a real and reasonable cause for the 
Ordinary to refuse him promotion to Orders, no matter how sincere his subse¬ 
quent repentance. 

The judgment as to the existence of this impediment is committed to the pru¬ 
dence of the Ordinary. 9 ’ If he determines that the individual does not labor under 
this infamy, there is no impediment, and no need therefore of dispensation. 
If he judges that the individual actually has an infamous reputation, he may 
indicate measures that will lead to a change of public opinion, and thus to 
the cessation of the impediment. If however no such measures are possible, the 
individual remains subject to the impediment, unless he secures a dispensation 
by showing a sufficient reason for disregarding his existing infamous reputation. 
The practical solution of any such case would be that the heretic should not 
merely repent, but show by an exemplary life of faith, through some consider¬ 
able time, that lie has repented; and, if necessary, that he should seek and exer¬ 
cise Orders in some other place than that in which he committed the delict, 
thereby divorcing himself completely from the scene and memory of his crime. 

f. Pontifical Rescripts 

Pontifical rescripts arc written responses by the Holy See to questions asked or 
favors requested. 9 ' These responses may grant a grace, privilege or dispen¬ 
sation, or concern some element of the administration of justice. 


01 CunwieulariuDt, III, Dc Sacramcntis, 355. 

32 Canon 2293, §3. 

m Canon 987, n. 7. Cf. Vcrmeerscli-Creusen, Epitome , II, n. 259. 
31 Canon 36, §1. 




I The Delict of Heresy 97 

Under the law of the Decretals, all excommunicates were held incapable of 
:i validly receiving any pontifical rescript; that is to say, any rescript addressed 
j) io them was invalid, and this whether the recipient was vitandus or tolcraius. 
r occultly or publicly censured.® However, justice often required that appeals and 
j other communications regarding the status of the delinquent should be an- 
jj swered, and the practice arose of absolving the delinquent ad cautelam (on the 
|i possibility that he had incurred the censure), ad effectual dumtaxai gratia-? con- 
sequendae. This last clause lifted the existing or presumed excommunication 
!; just to the extent required to give the rescript validity, but no further. Hence 
i the excommunication could not be alleged to invalidate the rescript, nor the 
i rescript alleged to prove the absence of censure. Thus the rescript could be re- 
ceived validly, even though the recipient was under censure. 

[| On and after November 3, 190S, the Constitution "Sapicnti Consilio" had 
B the force of law. Among other changes, the "Normac Pcculiarcs ” attached to 
£ this Constitution provided that all favors thereafter granted by the Iloly See 
re would be valid and legitimate, even if the grantee were under the ban of cen- 
p sure." This discipline is continued under the Code. Canon 3G, §2, states that 
i graces and dispensations granted by the Holy See are valid, even when the 
’ recipient is censured, with due regard for the provisions of canons 22(55, 2275, 
) and 2283. These three canons add that when the recipient has been judicially 
i sentenced to excommunication, interdict or suspension, the rescript will be 
; invalid unless it contains mention of the sentenced status of the recipient. 

Hence a heretic who receives from the Holy See any rescript, whether of grace 
j or of justice, will today have a valid document; with one exception, viz., when 
b he has been judicially sentenced for his delict, and this fact is unknown to and 
? unrnentioned by the rescript. It may be recalled again that by virtue of canon 
l 22(53, the heretic is deprived of the enjoyment of privileges previously granted. 

| By canons 36, §2, and 2265, §2, the Church wishes to restrict the attainment of 
N further privileges, at least by the sentenced heretic. Hence the spirit of the 
f; Code is to cut off the heretic from all such favors. 97 


3i Wernz, Jus DccrctaKnm, I, n. 151. 

i 30 Norman Pecultares, cap. TII, n. 6. Exception was made for cases in which the grantee had 
5 teen excommunicated nominatim, or had been suspended a divittis, iwminatim, by the Holv 
; See. 

37 Sole, Dc Dcliclis, n. 230. 









3 

| 

! 

i 


CHAPTER SEVEN 


JUDICIAL PROCESS AGAINST HERESY 


The canonical penalties against heresy are partly automatically imposed by j 
the law itself (lalae sententiac ), and partly imposed only by judicial process | 
(ferendae sententiac). The commission of an external act of heresy is presumed ■: 
by law to have all the necessary qualities of contumaeity, 1 and hence is au o- j 
maticaliy punished by a state of excommunication, which the delinquent must jj 
recognize as binding him in both the internal and external jora* In this no 
judicial process is involved. The person is excommunicated by virtue of the 
ore-existing law and the fact that he has committed the forbidden delict. The 
observance of this excommunication is left to the delinquent's own conscience. j 
No compulsion can be exerted against him to force compliance with the laws 
governing excommunicates, up to the moment when judicial process has been . 
completed and a sentence has been issued against him. Hence, even if a friend ' 
or a superior knows that the delict was committed, they may not do anything i 
more than urge him to recognize his status and avoid the further sm of violating ; 
his censure. They cannot compel him however, with the exception of certain ,< 
cases in which he has become a public sinner, and as such is to be repelled from 
the reception of Holy Eucharist,* Matrimony, 4 enrollment in pious associa- ; 
tions * and ecclesiastical burial.* In other words, the Church will deny him ■] 
these communications in Catholic life, not because he is a heretic, but because > 
he is a public and manifest sinner. _ _ j 

The external enforcement of laws against heretics as heretics, always in- 
volves some judicial process. This process may have various stages, marked by 
the judicial sentences imposed: a declaratory sentence that excommunication ; 
has been incurred by a delict of heresy; a sentence of juridical infamy; depnva- , 
tion of offices, benefices, etc.; deposition and degradation.? The issuance of any 
of these sentences (save the declaratory sentence), requires canonical warnings , 
and trials, with full observance of the criminal code in all details of the process, j 


- nlm! vyvi 81 • a further inso facto penaltv is imposed on those who join or publicly atllwrc 
to 'a C non Cafhoii^^sec “ifT clerie guilty of lh£ he has automatically respited any office 
or benefice hitherto his,—canon 2314, §1, n. 3. 


* Canon Soo. 

4 Canon 1066. 

1 Canon 693, §1. 
“Canon 1240, §1. 
1 Canon 2314, §1. 


98 


The Delict oj Heresy 


99 


It scarcely needs to be stated that the infliction of these penalties is of rare 
occurrence. Although delicts of heresy are numerous, it is not usual to pursue the 
delinquents with judicial process. Most of the cases of heresy involve the laity, 
and since they are already excommunicated, the additional process could lead 
only to a sentence of judicial infamy, and, in rare cases, to deprivation of some 
official position. Cases of heresy among the clergy are rarer. If these are occult, 
no judicial process is possible. If they are public, the cleric will in practically 
every case have abandoned any position which was hitherto his, together with the 
reception a.nd administration of Sacraments and the exercise of jurisdiction 
within the Church. Thus the delinquent, by his own choice, will have deprived 
himself of all the rights which the judicial process would strip from him; and he 
will have ceased to exercise any powers within the Church, so that the faithful 
will not be endangered by him, except on the score of scandal. Judicial process 
can therefore serve only as exemplary punishment,—as a formal notice to the 
world that the delinquent has offended, and that his teachings and example arc 
condemned by the Church. Hcncc there will be utility in pressing such cases 
to final punishment only in those cases in which the delinquent retains some 
power of prestige or personality whereby the faithful may stiil be misled. The 
obscure and uninfluentiai, even among clerical delinquents, may well be left to 
the punishment of their own consciences. 

There are two problems in regard to heresy which may need authoritative 
determination. The first is the problem whether or no some new teaching is 
actually an error against Catholic faith. Students of Catholic dogma are aware 
that most of the definitions of faith have been occasioned by some erroneous 
teaching which the Church has had to condemn. In our day, most of the cur¬ 
rent errors offend against definitions already recorded; but with the multitude 
of new doctrines, it is possible for some new view to be developed, the relation 
of which with Catholic faith is not entirely clear. Any person, lay as well as 
clerical, may denounce these doctrines, as well as repetitions of doctrines al¬ 
ready known to be heretical, to his Bishop, or to the Holy Office; 8 while Legates 
of the Holy See, Bishops and Rectors of Catholic Universities have this as one 
of their duties and privileges. The power to condemn offending books is given 
by the Code not merely to the Sacred Congregation of the Holy Office, but 
likewise to Particular Councils (for the dioceses represented), and to Ordinaries 
(for their own dioceses or religious bodies). 9 In addition, certain types of books 
are prohibited to the faithful by general law, apart from special condemnation.'" 
Among these may be noted: 


8 Canon 1397. 

' Canon 1395; cf. canon 336. 
10 Canon 1399. 




msmmmmmm 


msm 






The Delict of Heresy 


101 


100 The Delict of Heresy i 

2. Libri quorumvis scriptorum, hacresim vel schisma propug- 
nantes, aut ipsa refigionis fundamenfca quoquo modo evertere nitcntes; J 

3. Libri qui religionem aut bonos mores, data opera, impetunt; J 

4. Libri quorumvis acatholicorum, qui ex professo de religione -j 

tractant, nisi constet in eis nihil contra fidem catholicam contineri; :;| 

6. Libri qui quodlibet ex catholicis dogmatibus impugnant vel 
derident, qui crrorcs ab Apostoica Sede proscriptos tuentur, qui 
cultui divino detrahunt, qui disciplinam ecclesiasticam evertere con- | 
tendunt, et qui data opera ecclesiasticam hierarchiam, aut statum 
clericalem vel religiosam probris afficiunt. 'j 

Ordinaries and all having care of souls are required to warn the faithful of the | 
danger inherent in possessing and reading forbidden books. 11 j 

The foregoing is cited as indication of the great care with which the Church •; 
views the publication of heresy and error. To this may be added a brief notice that \ 
canon 2318 visits with excommunication, specially reserved to the Holy Sec, the i 
editors of books by apostates, heretics or schismatics, in which they defend 
and advocate their apostasy, heresy or schism; and the same penalty is assessed | 
against those who defend books which have been condemned by name by the j 
Holy See, and also those who knowingly retain and read forbidden books, with- .q 
out due permission. J 

The second question which may require judicial determination is that of the 
guilt or innocence of a person accused of heresy, and of the proper punishment of 
a delinquent found guilty. Under canon 247, the Sacred Congregation of the 
Holy Office, which guards the teaching of faith and morals, may judge criminal < 
cases of heresy, not merely on appeal from the tribunals of local authorities, but 
likewise in the first instance, if the case be directly referred to Rome. However. 
Bishops are not forbidden to judge and punish delinquents subject to their juris¬ 
diction, 12 under guidance of the directions issued by the Holy Office, such as ; j 
the Instruction, dated February 20,18G6, which regulated trials for solicitation. 13 | 

Since criminal prosecution of heresy will today be reserved to cases of especially :-| 
great importance and scandal, the Bishop may well denounce the delinquent to 1 
the Holy Office, and then simply act upon the instructions he receives in regard j 
to the case. j 

Judicial action against heresy can begin only when some baptized person has 
(at least by imputation) externally manifested, in words, acts or omissions, that J 
he doubts or denies some truth or truths which must be believed with divine j 
and Catholic faith. The commission of this delict may have been so public that 


11 Canon 1405, §2. 

>- Roberti, De Proccssihus, I, n. 237. 

11 Collect., n. 1282: referred to hereafter as "the Instruction.” There is in the hands of the 
Bishops a recent Instruction which has not been published; beyond doubt its contents do not 
greatly change the process of prosecution. 


it is known to Church authorities by public report, and without specific denunci¬ 
ation by any one or more individuals. In other cases, the commission of the 
delict will be made known to ecclesiastical officials by the report (denunciation) of 
some one who knows the fact. Under the law of the Decretals, a specific obliga¬ 
tion was imposed upon the faithful to denounce all heretics. 11 The Code gives 
the right of denunciation to all the faithful, but imposes the obligation only on 
those who are bound by law or special precept, 13 and upon individuals who, 
under the natural law, are personally responsible for the averting of danger to 
religion and faith or imminent harm to the common welfare. 16 

The exception of heresy may also be entered in certain cases as a means of 
nullifying or preventing harmful acts by one who had previously been guilty 
of heresy. As has been seen, 17 the sentenced heretic is deprived of the power 
to exercise jurisdiction, (acting as judge, imposing sentences, granting dispensa¬ 
tions, etc.), to share in the election or other modes of appointment to benefices 
and ecclesiastical offices, and to perform legitimate ecclesiastical acts (among 
others, being plaintiff in ecclesiastical courts). If he has done these things 
after committing a delict of heresy, and if it be desired to restrain him from 
further actions of this sort, the interested party can enter the exception of 
heresy, to the end that a declaratory sentence issue against the delinquent, 
with its consequent deprivations and prohibitions. Canon 2223, §4, provides 
that the issuance of declaratory sentences, stating that excommunications 
latae sententiae have been incurred, is left in general to the judgment of judicial 
Superiors; but imposes an obligation to issue such sentences when the common 
welfare requires it, or “ad inslantiam partis cujus interest 

This process docs not require the monitiottes mentioned in canon 2314, §1. 
It is not directed to the vindictive punishment of the crime so much as the 
juridical determination and recording of a status already existing. The trial is 
therefore simply to determine the fact: did the accused commit an act of heretical 
depravity? 18 If he did, and it is so proved, then the declaratory sentence issues, 
stating judicially that the delinquent was excommunicated on and after the 
date of the commission of the delict. 19 This finding gives the delinquent the status 
of a sentenced heretic, makes this status notorious in law, and imposes the tlis- 


11 C. 13, X, de hacrclicis, V, 7. 

“Canon 1935. Thus, by canon 1397, Legates of the Holy See, Bishops, anti Rector:; of 
Catholic Universities are pecutiari liltUo to report pernicious writings to the Holy See. 

16 Cf. Lehmkulit, Thcol. Moral., I, n. S13; II, n. 987. 

17 Cf. Chapter Sis above. 

18 Cappello> l.c., .states that the Bishop should inquire into the reasonableness of proeeding 
to this sentence; there should be not merely the fact that the delict has been committed, but 
also some useful purpose (public welfare or protection of individual rights) in issuing the 
declaratory sentence. 

15 Canon 2232, §2. 





102 


The Delict of Heresy 


103 


The Delict of Heresy j 

abilities and prohibitions which are decreed against sentenced heretics,? 0 The | 
seriousness of these results has led the Church to require that the verdict be i 
issued only by a collegiate tribunal of three judges, 21 who hear the evidence, and ,'j 
reach their decision by a majority verdict. 22 It is recommended that the Bishop | 
should not himself act as judge in these and other criminal cases. 22 _ _ ? 

Quite different from the judicial determination that an excommunication has | 
been incurred, is the criminal prosecution of the delict of heresy, with a view J 
to the infliction of the ferendae scnlentiae penalties of canon 2314, §1. As has 
been stated, the Sacred Congregation of the Holy Office has exclusive com- | 
potency to judge delicts of heresy; 24 but local Ordinaries are not forbidden to ; 
impose these penalties, after following the process of trial indicated by the J 
common law and the instructions of the Holy Office. 20 Canon 1555, §1, states | 
that even under the Code, the Holy Office will follow its own mode of procedure j 
and preserve its own customs; and that inferior tribunals, in handling cases 
which belong to the Holy Office, must be guided by the instructions and rules | 
issuing from that Congregation. Hence even local prosecution of the delict of .!< 
heresy will follow, not the ordinary criminal procedure of Title XIX, Book Four, ^ 
of the Code, but rather the simpler procedure which was outlined by the Holy ; 
Office in its Instruction to Bishops as to the mode of prosecuting clerics guilty ,1 
of the crime of solicitation ad turpia in connection with Confession. 28 A brief Jj 
review of the procedure of the Congregation itself will indicate the procedure to | 
be followed in local tribunals as well. _ _ | 

It is not the practice of the Holy Office to initiate criminal proceedings im- j 
mediately upon the receipt of a denunciation. Rather, the custom exists of re- j 
plying to the first denunciation by the command “ ObservcHir ,” i.e., the local J 
authorities are to observe and study the delinquent further, and watch especially 
to see if he repeats his delict and is guilty of further scandal. If a second de- ,i 
nunciation of the same delinquent is received, indicating that he is continuing 
his evil course, the same instruction will be issued, and a further period of j 
observation will be begun. It is only when a third denunciation has been re- j 
ceived, that the Holy Office will, in ordinary cases, begin judicial procedure. Only J 
by way of exception, will action begin after the first or second denunciation, when j 
proof is advanced that further delay will result in grave harm to the Church. 2 ’ j 


20 Canon 2256-2267. 

21 Canon 1576, §1, n. 1. 

22 Canon 1577, §1. 

22 Canon 157S. 

* Canon 247, §2. 

25 Robert!, De Proccssibus, I, p. 237. 

26 S.C.S.OfL, Feb. 20, 1866,— Collect ., n. 12S2. This Instruction is made the basis of the 
directions for local prosecution of heresy by Lega, De Jitdiciis , IV, n, 534, and Ileiner, De 
Prnccssu Criminali, 148. Cf. Blat, Commcntarimn, IV, n. 7. 

J? Lega, l.c.; Robert!, Dc Processibus, I, n. 151; the Instruction, n. 11. 


During these periods of observation, the local authorities will, of course, ac¬ 
cumulate information which will be of use if and when criminal prosecution 
begins. 

A further fact of primary importance is that the Holy Office treats all cases 
with the most absolute secrecy. Even if a suspected person is acquitted of 
charges advanced against him, he would suffer greatly in reputation and stand¬ 
ing if it were known that he had been under investigation or trial by the Holy 
Office. Hence, the Congregation requires that every participator in the process 
be held to the utmost secrecy, and even the office staff of the Congregation are 
sworn to avoid all mention of knowledge that comes to them concerning these 
cases. 28 The same secrecy is extended even to those cases that reach a final 
condemnation and infliction of punishment. 20 Unless the decree of punishment is 
officially published, there must be no mention of its being inflicted. 20 The 
Instruction to Bishops requires that local prosecution be conducted on the 
same basis. All officials of the local curia, all those who are called upon for testi¬ 
mony (included the denouncer), are to be sworn to secrecy. Even priests are 
to take oath by touching the Bible. The Bishop himself is bound to the same 
secrecy. 31 

The judicial procedure is per modum inquisitionis; that is, the case against 
the delinquent is carefully prepared in advance by the taking of depositions as 
to the commission of the delict. This preliminary investigation, or inquisition, 
caused the tribunal to be known for centuries simply as "the Inquisition." It is 
to be conducted in strict secrecy, with all care and prudence, to determine the 
facts of the case. Only when the evidence seems clear and conclusive is the ac¬ 
cused summoned to answer. 

It is the practice of the Holy Office to suspend all clerics a divinis from the 
moment they arc cited for trial. In view of the strong evidence which is re¬ 
quired before citation, this suspension will be clearly justified, even in advance 
of the formal verdict. Moreover, the accused will have been given great op¬ 
portunity to repent. Before the Bishop denounces him to the Holy Office, he 
should endeavor by paternal admonitions and friendly counsels to win the 
delinquent from his error. If these means are effective, there will be no need 
of the formal prosecution, and the delinquent will be given only salutary pen¬ 
ances. If however, the delinquent has been so contumacious that a denunciation 
was required, but aftenvards repents before he is cited and formal prosecution is 
begun, it is customary to inflict some vindictive penalties upon him, but of a less 


Hilling, Procedure at the Roman Curia, p. 55. 

22 Heiner, l.c. 

i0 E.g., if a heretic is declared vitamins. Cf. Lega, o.c., IV, 531. 
21 Instruction, n. 14, 




104 


The Delict of Heresy 

serious degree than those mentioned in canon 2314, §1. S! If however the delin¬ 
quent recant only after he has received the citation, he does not merit, per se, 
any reduction of the penalties Jerendae senteutiae, although, if his repentance 
be sincere and in accordance with canons 2242, §3, he must be absolved from 
the basic excommunication he had incurred. 33 

When the accused appears in court, he is given the depositions which have 
been made against him, and is required to answer the charges therein contained. 
The names of those who made the depositions are withheld from the accused, in 
accordance with a custom which extends back to the procedure of the Middle 
Ages. He is given the fullest opportunity to deny or explain the delict that 
is attributed to him; and, contrary to usual procedure, his own sworn state¬ 
ment is received in evidence. 33 Finally, after hearing all the defense, and de¬ 
termining the weight of any exceptions and counter evidence and depositions 
the defendant may introduce, the judges determine the guilt and the punish¬ 
ment to be assigned. As is set forth in canon 2314, §1, the infliction of these 
punishments has always been preceded by warnings to the delinquent that he 
recant his error and perform specific works of atonement and reparation of 
the damage and scandal he has caused. Failure to obey these warnings is proof 
of final and continuing contumacy and justifies the extreme spiritual priva¬ 
tions there recorded. 

It is proper, and perhaps necessary, to close this review of the judicial prose¬ 
cution of heresy, by remarking that in actual fact the trial of heretics by the 
Holy Office is attended by none of the horrors of cruelty and injustice which 
have been so frequently depicted in fiction. The testimony of Cardinal De Luca 
may be adduced; 

Illud autem certum et indubitatum cst (quidquid ignarum yul- 
gus indebite et absque fundamento opinatur) quod stylus est nimiurn 
placidus ac benignus, omnique majori charitate et circumspectione 
plenus, adeo ut non nisi magna urgente necessitate et quando com- 
pertum sit quod exaetissimae oceultae diligentiae non proficiant, 
hujusmodi negotia publice pandantur. 35 

The purpose of the Church has ever been the saving of souls. Her action against 
heretics is like that of Saint Paul against the incestuous Corinthian. He deter¬ 
mined “to deliver such a one to Satan for the destruction of the flesh, that the 
spirit may be saved in the day of our Lord Jesus Christ.” 36 Actually, the Co- 

M Roberti, De Processibns, I, n. lot; Lcga, De Jmliciis, n. 543; Heiner, De Processu Criminali, 
p. 149, Instruction, n. 13, note. 

» Canon 224S, §2. 

33 Roberti, l.c. 

» Quoted by I.ega, l.c., who himself describes the action of the Holy Office as "mitis el. 
charilaiiva." Roberti, l.c., calls it "mitis et prudentissima." 

!s I Cor., V, 5. 


The Delict of Heresy 


10:3 


rinthian was moved to repentance, and was restored to the communion of the 
faithful by Paul who had excommunicated him. 37 So too, the Church desires sin¬ 
cerely that he against whom she has had to use her power of binding, should 
under the inspiration of divine grace, return in a spirit of repentance, and receive 
from her the loosing from sin and censure which brings grace to the sinner and 
joy to the angels in heaven. 


37 II Cor., II, 1-11. 









The Delict of Heresy 


107 


CHAPTER EIGHT 
ABSOLUTION FROM HERESY 

It is the Church’s hope that every heretic will repent of his error, recant and 
seek absolution. To this end she lias provided a definite process of absolution 
which is found, upon examination, to be generously conceived and easy of appli¬ 
cation. 

Canon 2314, §2, states the law in the following terms: 

Absolutio ab excommunicatione de qua in §1, in foro conscien- 
tiae impertienda, est speciali modo Sedi Apostolicae reservata. Si 
tamen delictum apostasiae, haeresis vel schismatis ad forum exter¬ 
num Ordinarii loci quovis modo deductum fuerit, etiam per volun- 
tariam confessionem, idem Ordinarius, non vero Vicarius Generalis 
sine niandato speciali, resipiscentem, praevio abjuratione juridice 
peracta aliisque servatis de jure servandis, sua auctoritate ordinaria 
absolvere potest; ita vero absolutus potest deinde a peccato absolvi 
a quolibet confessario in foro conscientiae. Abjuratio vero habetur 
juridice peracta cum fit coram ipso Ordinario vel ejus delegato et 
saltern duobus testibus. 

In this legislation the primary distinction is between absolution in foro con¬ 
scientiae and absolution in the external forum. The former is reserved by the 
Code to the Holy See, up to the moment when absolution in the external forum 
has been obtained. The latter is one of the ordinary powers of the Bishop, (but 
not of the Vicar General), whenever the case has been brought in any way 
to his judicial attention in the external forum. This distinction will be fol¬ 
lowed in the following text, which will treat first of absolution in the internal 
forum, and then of absolution in the external forum. 

********* 

Absolution in the interna! forum of delicts of heresy is reserved to the Holy 
See. It must be noted that this absolution is reserved raiione censurae , and not 
ratione peccati. According to canon 894, there is only one sin reserved raiione 
peccati by the general law of the Church, and that is the delict of falsely ac¬ 
cusing a priest of solicitation. Hence, with heresy reserved ratione censurae , 
it follows that there is no reservation unless the censure has been incurred; and 
that there is no reservation of the sin when a censure which has been in¬ 
curred, has been removed. 1 The provision of canon 2314, §2, to this effect is 
simply an application of the general principle of canon 2246, §3. The application 


1 Cf. Motlion, Institutions Cananiques, III, n. 1927. 

10C 


of the foregoing doctrine may be seen in the following cases. A penitent who 
: confesses a purely subjective sin of heresy, and who states that the heretical 

ij error was in no wise expressed in words, acts or omission, may be absolved 
by any priest, by virtue of his ordinary faculties. There has been no external 
jj delict, and hence no censure, and hence no reservation. Likewise, a penitent who 
■ admits having been censured, but who has since received absolution from the 
:: censure, may be absolved by any confessor. In these cases, the confessor is re- 
[; stricted only by the requirement of verifying the existence of the proper dis- 
I. positions in the penitent; in other words, he can absolve from the sin of heresy 
h just as he absolves from other mortal sins. 

it Passing now to the question of absolution from the censure attached to 
heresy: there will be many cases in which absolution in the internal forum 
: will be the proper method of reconciling the excommunicated delinquent to 
1 the communion of the Church. Many heretics were guilty of a delict which 
|; was and which remained occult. While they themselves knew that they had 
incurred excommunication, the fact was not known to others, and was not 
fj recorded in the judicial records of the Church. In popular estimation and 
1; public standing, there existed no evidence that they had been severed from 
[; the communion of the faithful. It follows then that there would be little utility 
| in providing a public reconciliation. It has been the practice of the Church to 
i provide that excommunicates of this type, whether heretics or others, should be 
! reconciled with the same privacy as attended the incurring of the censure, 
i Such reconciliation may be effected in a number of ways. First, as canon 
2314, §2, suggests, the delinquent may approach the Holy See, through the 
: Tribunal of the Sacred Penitentiary, and obtain absolution from the censure 
; under the usual conditions of abjuration, repairing of damage and scandal, 
; and submission to penances enjoined. Such recourse may be made in person 
or by letter, and, if the latter, in any language and without special formulae of 
, words. 2 When absolution has been received from the censure, the penitent may 
be absolved from this and other sins by any confessor. 

1 While this method entails no great difficulty, save perhaps the amount of 
j time required, the Church has provided a second method which is even easier. 

Many of the Bishops of the United States possess faculties granted under the 
i title ‘'Formula Number Six.” In this pagclla is contained the following para¬ 
graph : 

$ Ex Sacra Poenitentiaria 

Absolvendi quoscumque poenitentes (exceptis haereticis haeresim 
inter fideles e proposito disseminentibus) a quibusvis censuris et 
poenis ecclesiasticis ob haereses tarn nemine audiente quam coram 
aliis externatas incursis, postquam tamen poenitens magistros ex 


2 A confessor may write the letter in behalf of the penitent. For a model of such a letter, 
and other information, cf. Vermeersch-Creusen, Epitome , Ilf, n. 454. 





108 


The Delict of Heresy 


109 


The Delict of Heresy ;1 

professo haereticalis doctrinac, si quos noverit, ac personas ecclesiasti- 
cas et religiosas, si quas hac in re habucrit, prout de jure denunciaverit; 1 

et quatenus ob justas causas hujusmodi denunciatio ante absolutio- | 

nem peragi nequeat, facta ab eo seria promissione denunciationem 
ipsorum peragendi, cum primurn et quo meliori modo fieri poterit; et 
postquam in singulis casibus haerescs coram absolvente abjuraverit; 
injuncta pro modo excessuum gravi poenitentia salutari cum frequen- 
tia Sacramentorum, et obligatione sese rctractandi apud personas 
coram quibus haereses manifestavit, atque illata scandala reparandi. ; 

The text is clear and definite. The Bishop can, by virtue of these faculties,* j 
absolve both occult and public heretics, but not those proselytizing heretics who 1 
had professedly endeavored to propagate religious errors among the faithful, a 
Absolution may be granted only upon the fulfilment of certain conditions. Thus j 
the heretic must make reparation for the scandal given by his delict by en- j 
dcavoring to arrest the activities of teachers of heresy. To this end; he must j 
denounce any such persons that he knows. Also, he must make known any •{ 
Catholic clergy who were accomplices in his delict. Finally, he must recant his 
heresy and make this known to those who heard him manifest his doubts or 
denials of revealed truth. These denunciations and recantations must either J 
precede the absolution, or else must be seriously promised by the penitent. | 
Secondly, the penitent must abjure his erroneous tenets in the presence of the 
Bishop or the priest who absolves him. Thirdly, he must submit to a penance ..-j 
proportioned to the gravity of his delict. j 

Attached to this section of the pagella is the following adnotandnm which 
regulates the use and delegation of the faculty just quoted. j 

Ordinarius recensitis facultatibus turn absolvendi a censuris turn 
dispensaudi, pro foro conscientiae, etiam extra sacramentalem con- :| 

fessionem, cum suis subditis, et extra dioecesim quoque, quatenus vel a 
ipse vel subjectus vel uterque extra dioccsim fuerint, necnon cum non 
subditis intra limites proprii territorii ex speciali Sedis Apostolieae 
auctoritate ispi concessa, uti valebit; casque intra fines dioecesis tan- 
tum Canonico Poenitentiario necnon Vicariis Foraneis, pro foro pariter j 
conscientiae et in actu sacramentalis confessionis dunitaxat, etiam 
habitualiter, si ipsi placuerit, aliis vero confessariis cum ad ipsum 
Ordinarium in casibus particularibus poenitentium recursum habue- 
rint, pro exposito casu impertiri poterit, nisi ob peculiares causas I 

aliquibus confessariis specialiter deputandis per tempus, arbitrio j 

suo statuendam, illas communicare judicabit. 

The Bishop who possesses these faculties can therefore absolve any heretical 
delinquent who comes to him within the confines of his own diocese, whether 
the delinquent be one of the Bishop's own subjects or not.* Moreover, the Bishop 

3 Note that this faculty concerns the internal forum, and hence is quite distinct from the 1 
power to absolve given by canon 231-1, §2. The latter power is restricted to the external forum. 

A Canon 94. 


can absolve his own subjects (but not heretics who are not his own subjects) 
outside his diocese; that is, when the Bishop is away from his diocese, or the 
subject is outside the diocese, or when both are outside. The absolution in this 
case pertains to the internal forum, but is conceded by the Bishop apart from 
the sacramental absolution from sins. The reason of this is, of course, the 
fact that the Bishop cannot give faculties to absolve from sins, save within the 
territorial limits of his diocese. Hence, if a subject is. outside the diocese, the 
Bishop can either absolve directly himself from the censure, thus making it 
possible for the delinquent to receive absolution from sin in the Sacrament of 
Penance from any confessor; or else the Bishop may delegate a priest of the 
other diocese to absolve from the censure in connection with the sacramental 
absolution which the priest will impart by virtue of the faculties which he holds 
in the other diocese. 

The case just stated involves some unusual elements which will rarely bo 
found in actual practice. For more regular cases of delegation, the Bishop will 
deal with the clergy of his own diocese. The faculty instructs the Bishop that 
he may delegate, but with restrictions. First, all who are given this faculty are 
to use it in connection with the giving of sacramental absolution. Moreover, the 
Bishop is instructed not to grant this faculty in general and habitualiter to all 
his priests; but rather to delegate priests individually and for individual cases, 
when they need this power for some penitent. There are exceptions to this rule. 
The faculty may be given, even habitualiter, to the Canon Penitentiary (where 
such an officer exists), and to the Rural Deans of the diocese, ft may likewise be 
given for a restricted and defined time to one or a few confessors, who have 
some special need of it; i.e., if they are chiefly engaged in dealing with heretics, 
and frequently have occasion to reconcile them to the Church. 

Hence, in dioceses where this faculty is possessed, delinquents who desire 
absolution from their censure in the internal forum may address the Sacred 
Penitentiary in Rome, or their own Bishop, or any priest whom the Bishop dele¬ 
gates. 

There is a third manner in which absolution in the internal forum becomes 
possible. This is the case in which the penitent hereLic is in danger of death. As 
is well known, the Church has made generous provision for any sinner who is in 
danger of death, and desires absolution from his sins. By a sweeping provision 
of the law itself, all priests, without exception, are granted the fullest faculties 
for this penitent. 5 The priest may or may not be in good standing, may or may 


5 Canon SS2. Note that if the penitent is a sentenced heretic, bis absolution must be governed 
by canon 2252, since the judicial sentence makes the censure ab honiine. Hence, if the penitent 
should survive, he is bound, sub poena reincidentiac, to submit himself to the superior who 
sentenced him, and to obey any orders which are given him. The confessor is not required to 
make this known to the penitent before absolving (note the difference in this regard of canon 
2254); but should at least instruct the penitent when the latter has recovered sufficiently. 




110 


The Delict of Heresy 


not be within his own diocese, may or may not be approved for confessions. 
His previous status and powers arc not concerned. If he is present where a peni¬ 
tent is in danger of death, he is thereby automatically given all possible facul¬ 
ties and powers to administer to the penitent; can absolve from all censures 
without exception, and can absolve from all sins, provided only the penitent 
possesses the proper dispositions for the reception of the Sacrament of Penance. 

Even beyond these three sources of internal forum absolution, there is a 
fourth, deriving from the provisions of canon 2254. This canon begins with the 
words: 


In casibus urgentioribus, si nempe censurae latae sententiae 
exterius servari nequeunt sine periculo gravis scandali, vcl infamiae, 
aut si durum sit poenitenti in statu gravis peccati pcrmanerc per 
tempus necessarium ut Supcrio competens videat. . . . 

A large proportion of the cases of heresy fall within the terms of this legislation. 
After a delict has been committed, the delinquent finds himself excommuni¬ 
cated. If he cares at all for his relationship with the Church, this status will be 
very burdensome to him. He is forbidden in conscience to receive the Sacra¬ 
ments, or (if he is a priest) to confect and administer them. He is bound in 
conscience to abstain from the exercise of jurisdiction (with exceptions stated 
above in Chapter Six). Violation of these and other prohibitions addressed to ex¬ 
communicates means the commission of new sins, and perhaps the incurring of 
irregularity. Observance of his status will frequently cause the Catholic com¬ 
munity to become aware that the individual is living and acting in an unusual 
way, and hence expose him to suspicion and infamy. 5 The delinquent is there¬ 
fore in a dilemma, from which he can be saved only by obtaining absolution from 
his censure. 

Moreover, it may happen that heretics, as well as other sinners, are moved by 
divine grace to a true repentance, and to a sense of the horror of being in the 
state of sin. When this is true, and when the penitent finds it hard to continue 
in the state of mortal sin during the time necessary to adjust his case in the 
external forum, the Church mercifully provides for immediate absolution in 
the internal forum, by which the censure is removed, and the penitent is enabled 
to receive the Sacrament of Penance and regain the state of grace. The hard¬ 
ship spoken of in the canon is purely moral, and means simply that the penitent 
finds the consciousness of being in the state of sin a burden and torment. The 
Code does not state how long a time is required to make the continued state of 
mortal sin a real hardship, sufficient to justify the application of the canon. 


6 Canon 2232, §1, provides that an excommunicate may disregard Ins censure when he 
would, by observing it, incur infamy; but this permission only concerns the censure, and does 
not remove the sinful dispositions which would make blasphemous the reception of the Holy 
Eucharist, the saying of Mass, etc. 


The Delict of Heresy 


111 


Cappello thinks that continuance in this state for a week would be, in reason¬ 
able estimation, hard to bear; or even lour or three days, if the penitent would 
have occasion, during these days to observe the censure. 7 Augustine 5 and Sole 3 
note the practice of frequent Communion, and suggest that even one day of 
delay would be a hardship for a penitent who wishes to receive Communion day 
by day. Since the matter is judged in the internal forum, the confessor must be 
guided by the facts that he discovers in the individual penitent. He may there¬ 
fore find cases in which he is justified in absolving, even when recourse to the 
Bishop would result in absolution the following day. 

The cases considered above would be chiefly, though not exclusively, occult 
delinquents. If the delict of heresy had been notorious, either in fact or by judi¬ 
cial process, there is less opportunity of applying this canon. Such penitents are, 
cx hypothesi, already disgraced and cannot plead that they fall within the pro¬ 
visions of the first clause of the canon. It is possible, but rather improbable, 
that obdurate heretics of this type will be so moved with compunction and 
religious fervor, that they will find it hard to delay their reconciliation with 
the Church for even a few days. However, if this possibility were actualized 
in a given case, the canon might be applied, especially if the delinquent takes 
immediate steps to notify the general public of his repentance. 

To all cases that fall within the clauses just discussed, the following procedure 
may be applied: 

. . . quilibet confessarius in foro sacramcntali ab eisdem [censuris 
latae sententiae], quoquo modo reservatis, absolvcrc potest, injuncto 
onere recurrendi, sub poena rcincidcntiac, intra mensem saltern per 
epistolam et per confessorcm, si id fieri possit sine gravi incommodo, 
reticito nomine, ad S. Poenitentiariam vel ad Episcopurn aliumve 
Superiorem praeditum facultate et standi cjus mandatis. 

This concluding portion of canon 2254 indicates that absolution in the internal 
forum may be given to delinquents in urgent cases by any confessor. This 
faculty to absolve is given by the Code to all priests who are approved for con¬ 
fessions, in addition to the ordinary faculties they enjoy, but cannot be used, of 
course, except in behalf of penitents who are of the types mentioned in the first 
half of the canon. 

The conditions under which absolution is permitted are, as usual, real with¬ 
drawal of contumacy, submission to the authorit}' of the Church, and willing¬ 
ness to prove these in action. The particular test in these cases is that the peni¬ 
tent must, in person or through the confessor, submit himself to the Sacred 
Penitentiary, or to his Bishop or some other Superior who has faculties, and 


7 Dr Censuris, p. 34. 

* Commentary , VIII, p. 25'J. 
3 Dc Dcliclis, p. 193. 







112 


The Delict of Heresy 

follow the authoritative decision which will be rendered concerning his case. 
This recourse to higher authority must be made within a month, sub poena rein- 
cidcnliae; that is, the penitent who neglects to fulfill his promise, automatically 
becomes excommunicated at the end of a month, if he has not prepared and 
sen t i — or had the confessor do so,—a report of his delict and his submission 
to judgment and penance. 

Certain details concerning this legislation deserve careful notice. First, 
the canon places an obligation upon the confessor to inform the penitent of the 
duty of referring himself to higher authorities.■» Most penitents will not know 
of this provision, but it is not the Church’s mind that they should thereby 
avoid its fulfilment. The confessor must inform them, and make this a test 
of the sincerity of their desire to be absolved and reconciled to the Church. 
Secondly, the period of a month is tempos utile It begins with the date of the 
confession, and is extended, ordinarily, to a month from that date; but if the 
penitent were impeded and could do nothing in the matter, “ tempos non cur - 
rat," and the computation would include only the time when the penitent 
had opportunity to send his report. 12 Thirdly, the time refers only to the send¬ 
ing of the report, and not to the reception of the report by the higher authority, 
nor to the receipt of the answer from higher authority by the penitent, thus, 
a penitent who writes to the Sacred Penitentiary in Rome within the month, 
does not rcincur excommunication, even if it is well over the month befoie he 
receives an answer to his letter. 

The canon indicates that the confessor should be ready to act for the peni¬ 
tent, unless there be some good excusing reason.' 3 If the confessor does act, the 
penitent must return to him later to receive the further instructions which the 
Superior will send through the confessor. When the confessor undertakes 
to represent the penitent, the latter is free from the obligation of reporting 
himself; and even if the confessor fails to make the report, the penitent does not 
thereby reincur excommunication. Certain cases may arise in which recourse 
cannot be made. Thus, it might conceivably happen that neither the penitent 
nor the priest could write, and that the penitent cannot personally approach any 
other confessor;" or, with the penitent unable to write, the priest might know 
that he would not be in the same place again to transmit the Superior s in¬ 
structions, and that the recourse would not really bring the penitent in touch 
with the proper ecclesiastical authorities.' 3 In these rare cases, the confessor will 


10 Ii the confessor fails in this duty, his absolution is valid but illicit,—Vermcersdi-Creusen, 
Epitome, III, n. 454, 4, 1. 

11 Canon 35. 

12 Sole, De Dclictis, n. 19G; Cappdlo, Dc Ccnsiiris, p. 34, n. 4. 

13 Ouppello, De Ccitsiiris, p. 34, n. 6. 

m S.C.S.Off., Nov. 9, ISOS,— Colled, n. 2023. 

>* S.C.S.Off., Sept. G, 1900,— Collect, n. 1095. 


The Delict of Heresy 


113 


1 himself give final and complete absolution, imposing some salutary penance 
I in connection with the absolution from the censure, which must be performed by 
> the penitent sub poena rcmcidcntiae . 16 

| The recourse may be directed to the Tribunal of the Sacred Penitentiary 
| in Rome, in any language." As we have seen, this is not necessary, when the 
] Bishop has special faculties allowing him to absolve these cases in the internal 
| forum. 18 A fictitious name is to be used, as a protection to the seal of the con- 
•1 fessional, since the delict is being reported and absolved in the internal forum. 

The delict should be described in general terms, and statement be marie of the 
j penitent’s readiness to submit to the penances imposed. 

c ********* 

■i 

\ All the foregoing refers to absolution in the internal forum. Canon 2251 
lj states that this absolution, while perfectly valid in the internal forum, docs not 
p hold in the external forum, unless it can he proved or legitimately presumed, 
i; Hence the penitent is still subject to the possibility of being cited and sentenced 
j in the external forum. Moreover, if the penitent has been sentenced in the ex- 
i ternal forum, mere sacramental absolution will not suffice to free him from the 
1 prohibitions which the sentence brought upon him in regard to his external 
ij religious life. Likewise when converts are made from non-Catholie sects, there 
i is need of regulating their standing, not merely in the forum of conscience, but 
likewise in public estimation. In all these cases, it will be necessary to secure 
\ absolution in the external forum. 

j Canon 2314, §2, already cited, provides that when a delict of heresy is brought 
;i to the external forum of the Ordinary in any manner, even by voluntary confes- 
\ sion, he has full power to absolve from the censure. Converts will afford typical 
cases of voluntary confession. When they have decided to become Catholics. 
? they will report themselves to the Church, admitting their status, and seeking 
^ absolution and admission to the communion of the faithful. So too, occult 
-j delinquents may approach the Bishop, with the purpose of avoiding possible 
’ prosecution in the external forum. Finally, sentenced heretics will have to report 
1 to the Bishop, in order to secure the removal of their public status as excom- 
; muni cates. 

The heretic must first satisfy the Bishop that he is no longer contumacious. 
The test of this matter is given by canon 2242, §3: 


» Canon 2254, §3. 

17 Vermeersch-Crcuscn, n.c., Ill, n. 454; Sole, Dc Dclictis , n. 195, givea form of petition anti 
tlic postal address. 

ls Note canon 2314 gives the Bishop power only in the external forum; hence he is to be 
approached here with a request to use the faculties granted by the Sacred Penitentiary. 







114 


The Delict of Heresy 

Contumaciam desiisse dieendum est cum reum vere delicti com¬ 
missi poenituerit et simul ipse congruam satisfactionem pro damms et 
scandalo dederit aut saltern seriopromisent; judicareautemutrum poeni- 
tcntia vera sit, satisfactio congrua aut ejusdem pronussio seria, necne, 
illius est a quo ccnsurae petitur. 

With this point settled to the Bishop's satisfaction, the penitent must abjure 
his errors in due form. This requirement has existed since the earliest times,•» 
and is a proper precaution to insure the sincerity of the penitent’s recantation. 
The Roman Ritual provides a formula of abjuration and profession of Catholic 
faith which is designed especially for converts.™ Delinquent Catholics would 
be held to make a more specific abjuration of the particular error which was 
involved in their delict. The essential necessity is that the delinquent abjure his 
particular error, and profess full belief in the opposite Catholic dogma, together 
with sincere acceptance of the doctrinal authority of God and of the Church 
This abjuration must be made juridically: i.e., there must be a formal and 
public act, under oath, in the presence of the Bishop or his deputy, and at least 
two witnesses. 21 The Code requires that other juridical necessities be com¬ 
plied with. This refers to the need of taking steps to undo the scandal already 
done, and to avert future damage by denouncing secret propagators of heresy. 

Not until all these preliminaries have been concluded may the Bishop absolve. 
The absolution will regularly take the solemn form indicated in the Roman Pon¬ 
tifical and Roman Ritual. 22 This may however be deemed little consonant with 
the modern distaste for ceremonies of personal humiliation." Absolution will 
be perfectly valid if it be given in the simpler form, which may likewise be 
found in the Ritual and in approved authors. 21 

The foregoing paragraphs have spoken of the reconciliation of converts by 
the Bishop. There exists in the United States a general practice of reconciling 
heretics, not by action of the Bishop personally, but by absolution imparted 
by simple priests,—commonly the priest who has instructed the heretic m the 


m Cf canon S of the Council of Nicaea,— Dcnzinger, n. 55; c. 21, 22, C, 1, 7, which are quo¬ 
tations from Pope Leo I, (440-161), and Pope Martin, (W3-to4).. In heDwrt^ 
X, de haereticis, V, 7; c. 10, X, dc purgattone canomca, V, 04; c. 11, dc hacreltcts, V, 2, in Sexto, 
c. 3, 5, de poenitenliis, V, 9, in lixlrava. com. 

■o Riluale Romanum, Addenda, Dc Neo-Co,Iversorum Receptione; tius formula onEUiaicd in 
the decree of S C S Off., July 20, 1859, addressed to the Bishop of Philadelphia; it n> indicated 
for useTn these cases by Acta cl Deere * Con. Plan. Ballimorensis II, n. 242; Acta cl Decrcla 
Con. Plcn. Ballimorensis III, n. 122. 

31 Cf. c. 11, dc haereticis, V, 2, in Sexto. 

22 Pontificate Romanum, Ordo Excommunicandi et Absolvendi; Ritualc Romanum, tit. I , 
cap. 3. 

22 Vermeerscli-Creuscn, Epitome, III, n. 449, 2. 

2 * Vermeersch-Creusen, ibid.; Cappello, De Censuris, n. 29, not. 4; cf. canon 203, §2. 


The Delict of Heresy 


115 


Catholic faith." In view of the text of canon 2314, §2, question may well arise as 
to whether this practice is in accordance with the provisions of the Code. At 
first sight, it would seem that the absolution of heretics, apostates and schis¬ 
matics is a power belonging to the Bishop, to the exclusion of others. The canon 
remarks that the Vicar General who, ex officio, has ordinary jurisdiction in a 
diocese, 26 does not possess this power of absolution. By implication, simple 
priests, -whether pastors or curates, are even less likely to possess it. 

Before discussing this question, it is well to remark that where the convert 
comes to the Church from infidelity,—i.e., when he had never received the 
Sacrament of Baptism,—he has not incurred any censure, and hence there is 
no reservation of censure possible in his case. Such converts will be baptized 
and thereby become members of the Church in full communion. 22 Moreover, if 
the convert had previously been doubtfully baptized in heresy, this doubt as to 
his fundamental status would affect any subsequent censure; and such a doubtful 
censure, by reflex principles, does not bind. Hence converts of this type may 
likewise be reconciled by any priest. A large proportion of the converts from 
other faiths will be included in one or other of these classes. 

Theie remain the converts who certainly were baptized. By the external forum 
presumption of canon 2200, §2, these heretics are presumed to have incurred 
the excommunication entailed by heresy, and hence their absolution in the ex¬ 
ternal forum must, in general law, be governed by the provisions of canon 2314, 
§2. This in turn means that the case must be juridically presented to the Bishop 
for judgment. Mere casual statements are notsufficient for this purpose. Even if 
the delinquent admit his fault, this is not the confession referred to in the text 
of the canon. Rather, there should be a canonical confession, which implies that 
the delinquent should admit his fault in the presence of two witnesses and the 
judge, and that this admission of guilt should be therefore established in the 
external judicial forum. After this canonical confession, would come the equally 
formal abjuration and absolution. 

Now it is obvious that this formal procedure is not followed by the priests who 
receive heretical converts today. Even when they receive delegated powers 
from their Bishop, explicitly or implicitly in the grant of diocesan faculties, 26 
they have not treated the case with this formality, but rather with the simpler 
procedure indicated in the formula “De Neo-Conversorum Keceptione ” which is 
printed in their Rituals. This leads to the questions of the sufficiency of the 


25 Ferreres, Dcrecho Sacramental y penal, n. 886, remarks that this practice is in vigor (“estd 
eit vigor") in Germany and other places; by implication, it does not exist in Spain. 

26 Canon 360, §1; 363, §1. 

27 Canon 87. 

!S Explicit delegation has been given to the priests of the Archdiocese of Philadelphia,— 
Faculties, n. 11; and to the priests of the Diocese of Harrisburg,— Faculties, n. 14. 




fS-iy. 








DEUS LUX MEA 


TITULI 

QUOS 

AD DOCTORATUS GRADUM 

IN 

JURE CANONICO 

Apud Universitatem Catholicam Americae 
CONSEQUENDUM 
PUBLICE PROPUGNABIT 

ERIC F. MACKENZIE 

SACERDOS ARCHIDIOECESIS BOSTONIENSIS 
JURIS CANONICI LICENTIATUS 


HORA XI, A. M. DIE XXIV MAII A.D. MCMXXXI 









TITULI 


DE JURE CANONICO 


I. 

De Dissertatione. 


II. 

De Historia Juris Canonici. 

III. 

Canones 1-7 

De Ambitu Codicis. 

IV. 

Canones 8-24 

De Legibus Ecclesiasticis. 

V. 

Canones 25-30 

De Consuetudine. 

VI. 

Canones 31-35 

De Temporis Supputatione. 

VII. 

Canones 36-62 

De Rescripts. 

VIII. 

Canones 63-79 

De Privilegiis. 

IX. 

Canones 80-86 

De Dispensationibus. 

X. 

Canones 87-107 

De Personis in Genere. 

XL 

Canones 108-110 

De Clericis in Genere. 

XII. 

Canones111-117 
cesi. 

De Clericorum Adscriptione Alicui Dio- 

XIII. 

Canones 118-123 

De Juribus et Privilegiis Clericorum. 

XIV. 

Canones 124-144 

De Obligationibus Clericorum. 

XV. 

Canones 145-195 

De Officiis Ecclesiasticis. 

XVI. 

Canones 196-210 

De Potestate Ordinaria et Delegata. 

XVII. 

Canones 211-214 
calem. 

De Reductione Clericorum ad Statum Lai- 

XVIII. 

Canones 215-221 

Dc Romano Pontifice. 

XIX. 

Canones 222-229 

De Concilio Ecumenico. 

XX. 

Canones 329-349 

De Episcopis. 

XXI. 

Canones 350-355 
porum. 

De Coadjutoribus et Auxiliaribus Episco- 

XXII. 

Canones 356-362 

De Synodo Dioecesana. 

XXIII. 

Canones 363-365 

De Curia Dioecesana. 

XXIV. 

Canones 306—371 

De Vicario Generali, 

XXV. 

Canones 372-384 
vo Episcopali. 

De Cancellario Aliisque Notariis et Archi- 

XXVI. 

Canones 385-390 
chis Consultoribus. 

De Examinatoribus Synadalibus et Paro- 

XXVII. 

Canones 423-438 

De Consultoribus Dioecesanis. 

XXVIII. 

Canones 445-450 

De Vicariis Foraneis. 

XXIX. 

Canones 451-170 

De Parochis. 

XXX. 

Canones 731-736 

De Sacramentisin Genere. 

XXXI. 

Canones 738-744 

De Ministro Baptismi. 

121 








122 


The Delict of Heresy 


it 

m 

$ 


p 


g 


I-: 

III 

ifi| 

0, 

ill 


XXXII. Canones 745-754 
XXXIII. Canones 755-761 
XXXIV. Canones 762-769 
XXXV. Canones 770-776 
XXXVI. Canones 777-779 
latione. 

XXXVII. Canones 871-892 
XXXVIII. Canones 893-900 
XXXIX. Canones 901-907 
XL. Canones 908-910 
XLI. Canones 1243-1240 
XLII. Canones 1247-1249 
XLIII. Canones 1250-1254 
XLIV. Canones 1310-1321 
XLV. Canones 2199-2211 


De Baptismi Subjecto. 

De Ritibus et Caercmoniis Baptismi. 

De Patrinis. 

De Tempore et Loco Baptismi Conferendi. 
De Collati Baptismi Adnotatione et Pro- 

De Ministro Sacramenti Poenitentiae. 

De Rescrvatione Peccatorum. 

De Subjecto Sacramenti Poenitentiae. 

De Loco ad Confessiones Excipiendas. 

De Temporibus Sacris. 

De Diebus Festis. 

De Abstinentia et J ejunio. 

De Jurejurando. 

De Imputabiiitate Delicti. 


ROMAN LAW 


XLVI. The Periods of Roman Law. 

XLVII. The Sources of Roman Law. 

XLVIII. Personality. 

XLIX. Slavery. 

L. Citizenship. 

LI. Patria Potestas. 

LII. Personae in Manu. 

LIII. Personae in Mancipio. 

LIV. Tutela et Cura. 

LV. Ownership. 

LVI. De Obligationibus in Cenere. 

LVII. De Obligationibus extra Contractibus. 
LVIII. Furtum. 

LIX. Damnum Injuria Datum. 

LX. Injuria. 


§§: VIDIT FACULTAS: 

jl$ VALENTINUS T. SCHAAF, O.F.M., S.T.B., J.C.D., Vice-Decanus. 

18 LUDOVICUS H. MOTRY, S.T.D., J.C.D., o Secretis. 

§f| FRANCISCUS J. LARDONE, S.T.D., J.U.D. 

g|i: VIDIT RECTOR MAGNIFICUS UNIVERSITATIS: 

ff§; JACOBUS HUGO RYAN, Ph.D.. S.T.D., LL.D., Litt.D. 

jrtfl 





BIOGRAPHICAL NOTE 


The author of this dissertation was born in Boston, Massachusetts, in 1893. 
He received his elementary education in the public schools of that city. Four 
years later he graduated from Boston College High School, and entered Boston 
College. From this institution he received the degree of Bachelor of Arts, in 
1914. The same year he entered Saint John’s Seminary, to prepare for the priest¬ 
hood m the Archdiocese of Boston. He was ordained by His Eminence, William 
Cardinal O’Connell, Archbishop of Boston, on October 20, 1918. Thereafter he 
pursued theological studies at the Catholic University of America, in Washing¬ 
ton, D. C„ under the direction of Monsignor Filippo Bernadini, S.T.D., J.U.D., 
the Very Reverend Edmund T. Shanahan, S.T.D., and the Very Reverend 
Charles F. Aiken, S.T.D. The two professors last mentioned have since passed 
to their eternal reward; but there is due to their memory a mention of their 
rich scholarship and generous devotion. It is a pleasure to be able to offer 
Monsignor Bernadini a word of sincere thanks and grateful appreciation inter 
mvos. In 1919, the author attained the degree of Licentiate of Canon Law; in 
1920, that of Licentiate in Sacred Theology. He also received, in 1919, the degree 
of Master of Arts from Boston College, 

In the fall of 1920, he was appointed to the faculty of Saint John’s Semi¬ 
nary, where he has since served. His courses treat of Philosophy, and, since 
19.28, of Moral Theology. The present dissertation is an attempt to combine 
a study of the canonical legislation concerning heresy with apposite principles 
and doctrines drawn from Moral Theology. In this connection, the author 
wishes to express his gratitude to the Reverend Joseph C. Walsh, J.C.D., of Saint 
John’s Seminary, who gave freely of the wealth of his knowledge of Canon Law; 
and to the Reverend Valentine T. Schaaf, O.F.M., J.C.D., and to the Reverend 
Hubert Louis Motry, J.C.D., who, as Professors of the School of Canon Law at 
the Catholic University, have manifested both legal learning and a kindly and 
generous willingness to advise and assist. 





CATHOLIC UNIVERSITY OF AMERICA 

CANON LAW STUDIES 


1 Free1ks , Rev. Celestins A., C.PP.S., J.C.D., Religious Congregations in Their Externa! 

Relations, 121 pp., 1910. . 

2. Galliher, Rev. Daniel M., O.P, J.C.D., Canonical Elections, 117 pp., 1917 

3. Borkowski, Rev. Aurelius L„ O.F.M., J.C.D., De Confratermtatibus Ecclesiastic*, 136 

a rAWiiro^RBV. Cayo, J.C.D., Disertacion Historico-canonica sobre la Potestad del 
Cabildo en Sede Vacante o Impcdida del Vicario Capitular, 99 pp., 1919 ( 1918 >- 

5. Kubelbfxk, Rev. Wh.liam J„ S.T.B., J.C.D., The Sacred Penitentiana and Its Relations 

to Faculties of Ordinaries and Priests, 129 pp., 1918. 

6. PETROV 1 TS, Rev. Joseph J. C„ S.T.D., J.C.D., The New Church Law on Matnmony, 

7 Hickey, Rev. John J., S.T.B., J.C.D., Irregularities and Simple Impediments in the New 

Code of Canon Law, 100 pp., 1920. 

8 Klekotka, Rev. Peter J, S.T.B., J.C.D., Diocesan Consultors, 179 pp., 1920. 

9. WannenmacheR, Rev. Francis, J.C.D., The Evidence in Ecclesiastical Procedure 
Affecting the Marriage Bond, 1920. (Not Printed.) ... 

10. Golden, Rev. Henry Francis, J.C.D., Parochial Benefices in the New Code, IV-1,9 pp., 

1921. (Printed 1925.) . . . 

11. Koudelka, Rev. Charles J., J.C.D., Pastors, Their Rights and Duties According to the 

New Codeof Canon Law, 211 pp., 1921. _ 

12. Melo, Rev. Antonies, O.F.M., J.C.D., De Exemptione Regulanum, X-18S pp., 1921 

13. Schaaf, Rev. Valentine Theodore, O.F.M., S.T.B., J.C.D., The Cloister, X-1S0 

14. Burke, Rev. Thomas Joseph, S.T.B., J.C.D., Competence in Ecclesiastical Tribunals, 

IV-117 pp.,1922. . . 

15. Leech, Rev. George Leo, J.C.D., A Comparative Study of the Constitution Apostohcae 

Sedis” and the "Codex Juris Canonici," 179pp., 1922. 

1G. Motry, Rev. Hubert Louis, S.T.D., J.C.D., Diocesan Faculties according to the Code 
of Canon Law, 11-167 pp,, 1922. 

17. Murphy, Rev. George Lawrence, J.C.D., Delinquencies and Penalties in the Adminis¬ 

tration and the Reception of the Sacraments, IV-121 pp., 1923. 

18. O'Reilly, Rev. John Anthony, S.T.B., J.C.D., Ecclesiastical Sepulture in the New 

Code of Canon Law, 11-129 pp., 1923. . . 

19. Michalicka, Rev. WencESLas Cykill, O.S.B., J.C.D., Judicial Procedure in Dismissal 

of Clerical Exempt Religious, 107 pp., 1923. 

20. Dargin, Rev. Edward Vincent, S.T.B., J.C.D., Reserved Cases According to the Code 

of Canon Law, IV-103 pp., 1921. 

21. Godfrey, Rev. John A., S.T.B., J.C.D., The Right of Patronage According to the Code 

of Canon Law, 153 pp., 1924. 

22. Hagedokn, Rev. Francis Edward, J.C.D., General Legislation on Indulgences, !Llo4 pp., 

1924. _ . 

23. King, Rev. James Ignatius, J.C.D., The Administration of the Sacraments to Dying 

Non-Catholics, V-141 pp., 1924. 


124 


The Delict of Heresy 125 

24. Winslow, Rev. Francis Joseph, A.F.M., J.C.D., Vicars and Prefects Apostolic IV-149 
pp., 1924. 

25 Correa, Rev. Jose Servelion, S.T.L., J.C.D., La Potestad Legislative de la Iglesia 
Catolica, IV-127 pp., 1925. 

26. Dugan, Rev. Henry Francis, M.A., J.C.D., The Judiciary Department of the Diocesan 

Curia, 87 pp., 1925. 

27. Keller, Rev. Charles Frederick, S.T.B., J.C.D., Mass Stipends, 167 pp., 1925. 

28. Paschang, Rev. John Linus, J.C.D., The Sacramentals According to the Code of Canon 

Law, 129 pp., 1925. 

29. Piontek, Rev. Cyrillus, O.F.M., S.T.B., J.C.D., De Indulto Exchustrationis neC non 

Saecularizationis, XIII-2S9 pp., 1925. 

30. Kearney, Rev. Richard Joseph, S.T.B., J.C.D., Sponsors at Baptism According to the 

Code of Canon Law, IV-127 pp., 1925, 

31. Bartlett, Rev, Chester Joseph, A.M., LL.B., J.C.D., The Tenure of Parochial Property 

in the United States of America, V-108 pp., 1926. 

32. Kilker, Rev. Adrian Jerome, J.C.D., Extreme Unction, V-425 pp., 192G. 

33. McCormick, Rev. Robert Emmett, J.C.D., Confessors of Religious, VIII-2G6 pp., 1926. 

34. Miller, Rev. Newton Thomas, J.C. D., Founded Masses According to the Code of Canon 

Law, VII-93 pp., 1926. 

35. Roelker, Rev. Edward G., S.T.D., J.C.D., Principles of Privilege According to the Code 

of Canon Law, XI-168 pp., 1926. 

36. Bakalarczvk, Rev. Richaruus, M.I.C., J.U.D., De Novitiatu, VIII-20S pp., 1927. 

37. Przzun, Rev. Lawrence, O.F.M., J.U.L., De Parochis Religiosis, 1927. (Not Printed.) 

38. Bliley, Rev. Nicholas Martin, O.S.B., J.C.D., Altars According to the Code of Canon 

Law, XIX-132 pp., 1927. 

39. Brown, Brendan Francis, A.B., LL.M., J.U.D., The Canonical Juristic Personality 

with Special Reference to its Status in the United States of America, V-212 pp 1927 

40. Cavanaugh, Rev. William Thomas, C.P., J.U.D., The Reservation of the Blessed 

Sacrament, VIII-101 pp., 1927. 

41. Doheny, Rev. William J., C.S.C., A.B., J.U.D., Church Property: Modes of Acquisition, 

X-11S pp., 1927. 

42. Feldiiaus, Rev. Alovsius H„ C.PP.S,, J.C.D., Oratories, IX-141 pp., 1927. 

43. Kelly, Rev. James Patrick, A.B., J.C.D., The Jurisdiction of the Simple Confessor, 

X-208 pp., 1927. 

44. Neuberger, Rev. Nicholas J., J.C.D., Canon G or the Relation of the Codex Juris Canoni¬ 

ci to the Preceding Legislation, V-95 pp., 1927, 

45. O Keeffe,Rev. Gerald Michael, J.C.D., Matrimonial Dispensations, Powers of Bishops, 

Priests, and Confessors, VIII-232 pp., 1927, 

46. Quigley, Rev. Joseph, A.M., A.B., J.C.D., Condemned Societies, 139 pp., 1927. 

47. Zap-lotnik, Rev. Ioannes Leo, J.C.D., De Vicaiiis Foraneis, X-142 pp.. 1927. 

48. Duskie, Rev. John Aloysius, A.B., J.C.D., The Canonical Status of the Orientals in the 

United States, VIU-196 pp., 192S. 

49. Hyland, Rev. Francis Edward, J.C.D., Excommunication, Its Nature, Historical De¬ 

velopment and Effects, VIII-181 pp., 1928. 

50. Reinmann, Rev. Gerald Joseph, O.M.C., J.C.D., The Third Order Secular of Saint 

Francis, 201 pp., 1928, 

51. Schenk, Rev. Francis J., J.C.D., The Matrimonial Impediments of Mixed Religion 

and Disparity of Cult. XVI-31S pp., 1929. 

52. Coady, Rev. John Joseph, S.T.D., J.U.D., A.M., The Appointment of Pastors, VIII-150 

pp., 1929. 




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126 The Delict oj Heresy 

53. Kay, Rev. Thomas Henry, J.C.D., Competence in Matrimonial Procedure, VIII-164 

pp., 1929. 

54. Turner, Rev. Sidney Joseph, C.P., J.U.D., The Vow of Poverty, XLIX-217 pp., 1929. 

55. Kearney, Rev. Raymond A., A.B., S.T.D., J.C.D., The Principles of Delegation, VII- 

149 pp., 1929. 

56. Conran, Rev. Edward James, A.B., J.C.D., The Interdict, V-163 pp., 1930. 

57. O'Neill, Rf.v. William H., J.C.D., Papal Rescripts of Favor, VII-219 pp., 1930. 

58. Bastnagel, Rev. Clement Vincent, J.U.D., The Appointment of Parochial Adjutants 

and Assistants, XV-262 pp., 1930. 

59. Ferry, Rev. William A., A.B., J.C.D., Stole Fees, X-108 pp., 1930. 

60. Costello, Rev. John Michael, A.B., J.C.D., Domicile and Quasi-Domicile, VII-201 

pp., 1930. 

61. Kremer, Rev. Michael Nicholas, A.B., S.T.B., J.C.D., Church Support in the United 

States, VI-137 pp., 1930. 

62. Angulo, Rev. Luis, C.M., J.C.D., Legislacidn de la Igelsia Catdlica sobre la intencitSn 

t.i la aplicaci6n de la Misa, VII-104 pp., 1931. 

63. Frey, Rev, Wolegang, O.S.B., A.B., J.C.D., The Act of Religious Profession, VIII- 

174 pp., 1931. 

64. Roberts, Rev. James Brendan, A.B., J.C.D., The Banns of Marriage, XIV-140pp., 1931. 

65. Ryder, Rev. Raymond Aloysius, A.B., J.C.D., Simony, IX-151 pp., 1931. 

66. Campagna, Rev. Michael Angelo, Ph.B., J.U.D., II Vicario Generale del Veseovo, 

VII-205 pp., 1931. 

67. Cox, Rev. Joseph Godfrey, A.B., J.C.D., The Administration of Seminaries, VI-124 pp., 

1931. 

68. Gregory, Rev. Donald Joseph, S.T.B., J.U.D., The Pauline Privilege, XV-165 pp., 

1931. 

69. Donohue, Rev. John Francis, A.M., J.C.D., The Impediment of Crime, VIII-110 pp., 

1931. 

70. Dooley, Rev. Eugene A., O.M.I., J.C.D., Church Law on Sacred Relics, IX-143 pp., 1931. 

71. Ortii,Rev. ClementRaymond, O.M.C., J.C.D., The Approbation of Religious Institutes, 

170 pp., 1931. 

72. Pernicone, Rev. Joseph M., A.B., J.C.D., The Ecclesiastical Prohibition of Books, 

XII-267 pp.,1932. 

73. Clinton, Rev. Connell, A.B., J.C.L., The Paschal Precept, 1932. 

74. Donnelly, Rev. Francis B., A.M., S.T.L., J.C.L., The Diocesan Synod, 1932. 

75. Torrents, Rev. Camilo, C.M.F., J.C.L. 

76. Murphy, Rev. Edwin J., C.PP.S., J.C.L., Suspension Ex Informata Conscientia, 1932. 

77. Mackenzie, Rev. Eric F., A.M., S.T.L., J.C.L., The Delict of Heresy in its Commis¬ 

sion, Penalization, Absolution, 1932. 

78. Lyons, Rev, Avitus E., S.T.B., J.C.L., The Collegiate Tribunal of the Diocesan Court 

of First Instance, 1932. 

79. Connolly, Rev. Thomas A., J.C.L., Appeals, 1932. 

SO. Sangmeistbr, Rev. Joseph V., A.B., J.C.L., Force and Fear as Precluding Matrimonial 
Consent, 1932. 

81. Jaeger, Rev. Leo A., A.B., J.C.L., The Administration of Vacant and Quasi-Vacant 

Episcopal Sees in the United States, 1932. 

82. Rimlinger, Rev. Herbert T., J.C.L., Error Invalidating Matrimonial Consent, 1932. 

83. Barrett, Rev. John D. M., S.S., J.C.L., Comparative Study of the Third Plenary Council 

and the Code, 1932. 






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